Monday, August 18, 2014

An action for fraud, breach of fiduciary duty, and negligence.

Practice point:  The Appellate Division affirmed the dismissal of the causes of action to recover damages for fraud, breach of fiduciary duty, and negligence pursuant to CPLR 3211(a)(1). The defendants' documentary evidence included forms signed by or on behalf of the plaintiffs that contained specific disclaimer provisions, pursuant to which the plaintiffs expressly acknowledged that the defendants were not authorized to provide tax advice, and that they would not rely on any such advice provided. These forms conclusively established the defendants' defense to the claims.

Student note:  A motion to dismiss a complaint based on documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law.

Case:  Air & Power Transmission, Inc. v. Weingast, NY Slip Op 05757 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  The statute of frauds and a subscribed memorandum.