Sutch v Sutch-Lenz
2015 NY Slip Op 04904 [129 AD3d 1266]
June 11, 2015
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 5, 2015


[*1]
  Jessica M. Sutch, Appellant,
v
Debera C. Sutch-Lenz, Also Known as Debera C. Sutch, et al., Defendants, and William J. Cade et al., Respondents.

Towne, Ryan & Partners, PC, Albany (Dana K. Scalere of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker, LLP (Thomas M. Witz of counsel), for William J. Cade and another, respondents.

Egan Jr., J. Appeal from an order of the Supreme Court (Nolan Jr., J.), entered June 24, 2014 in Saratoga County, which, among other things, granted a motion by defendants William J. Cade and Cade & Saunders, P.C. for summary judgment dismissing the complaint against them.

The underlying facts are fully set forth in our prior decision involving a virtually identical appeal brought by plaintiff's brother, Benjamin Sutch, wherein this Court affirmed Supreme Court's order granting a motion by defendants William J. Cade and Cade & Saunders, P.C. (hereinafter collectively referred to as defendants) to dismiss the complaint against them (Sutch v Sutch-Lenz, 129 AD3d 1137 [2015]). Upon reviewing the record on appeal in this case, we find that plaintiff's allegations of legal malpractice, breach of implied contract and breach of fiduciary duty, as well as plaintiff's request for an accounting and the disgorgement of all legal fees [*2]received by defendants, mirror those raised by her brother on his prior appeal[FN*] —as does the salient evidence submitted in support of and in opposition to defendants' motion for summary judgment dismissing the complaint against them. Accordingly, as plaintiff's arguments and proof with respect to the causes of action asserted here are indistinguishable from those previously raised by her brother, we affirm for the reasons set forth in our prior decision (id.).

Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the order is affirmed, with costs.

Footnotes


Footnote *:The only apparent distinction between the two appeals is the procedural mechanism employed by defendants on the underlying motions. Here, defendants answered and moved for summary judgment dismissing plaintiff's complaint (citing CPLR 3211 grounds), whereas defendants filed a pre-answer motion to dismiss the action brought by plaintiff's brother.