Upon the following papers read upon this motion by third-party defendant to dismiss the third-party complaint pursuant to CPLR 3211(a) (1) and (7), third party defendant's notice of motion and supporting papers: NYSCEF Docs # 11-17; defendant/third-party plaintiffs' affirmation and memorandum of law: NYSCEF Docs. # 20-21; third-party defendant's memorandum of law in reply: NYSCEF Doc. # 24; transcript of oral argument: NYSCEF Doc. # 29; third-party defendant's supplemental memorandum of law: NYSCEF Doc. # 28 and defendants/third-palrty plaintiffs' supplemental memorandum of law: NYSCEF Doc. # 30; it is

ORDERED that third-party defendant Hunt F. Bresky's motion to dismiss defendants/third-party plaintiffs Edward K. Blodnick, Thomas R. Fazio, Paul A. Lanni and Blodnick, Fazio and Associates, P.C.'s third-party complaint pursuant to CPLR 3211 (a) (1) and (7) (Mot. Seq.# 001) is granted to the extent that the second cause of action and that portion of the first cause of action based upon breach of contract are dismissed, but that part of the first cause of action based upon claims of third-party defendant Hunt F. Bresky's alleged negligence are not dismissed; and it is further

ORDERED that third-party defendant Hunt F. Bresky is to file an answer to the remaining allegation in the third party complaint within ten (10) days of the date of service of notice of entry of this decision and order (CPLR 3211 [f]); and it is further

ORDERED that this action is scheduled for a conference in the court's Differentiated Case Managment Part ("DCM"), Alan D. Oshrin Courthouse, 1 Court Street, Riverhead, New York, on July 14, 2020 at 9:30 AM to enter into a preliminary conference order.

This is a third-party action commenced in a primary action entitled Hunt F. Bresky, as Executor of the Goods, Chattels, and Credits of Jeffrey R. Ruggiero and as Trustee of the Jeffrey R. Ruggiero Revocable Trust ("plaintiff") v Edward K. Blodnick, Thomas R. Fazio, Paul A. Lanni and Blodnick, Fazio and Associates, P.C. ("defendants"). On April 26, 2018 plaintiff, filed the primary action raising the claim that in his representative capacity he retained defendants as attorneys to represent the estate and trust, and that subsequently defendants failed to file certain Federal and New York State tax returns causing the estate and trust penalties, fees and interest (NYSCEF Doc. # 1). Defendants filed an answer on June 12, 2018 in which they denied the allegations of the complaint and raised a number of affirmative defenses (NYSCEF Doc. # 6). Subsequently on February 19, 2019 defendants filed a third party complaint raising two causes of action against Hunt F. Bresky ("Bresky"), not as representative of the estate and trust, but in his individual capacity, claiming that he was negligent in failing to provide them with certain information necessary for defendants to file the tax returns and that he violated his retainer agreement/contract with defendants, causing the injuries claimed in the primary action.

Rather than filing an answer, Bresky timely moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss the action base upon documentary evidence and that the third-party complaint failed to [*2]state a cause of action. Third party plaintiffs/defendants ("defendants") filed opposition and a memorandum of law to which Bresky filed a reply memorandum of law. The court held oral argument on the motion, after which it gave counsel the opportunity to provide additional memorandums of law, upon the filing of which the motion was marked fully submitted.

As pointed out by Bresky in his submissions, and at oral argument, EPTL § 11-4.1 provides that, generally, an action against an appointed personal representative shall be brought in his/her representative capacity, not in his/her individual capacity. Further EPTL § 11-4.7 states in pertinent parts:

(a) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate or trust in the contract.

(b) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he failed to exercise reasonable care, diligence and prudence.

(c) Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.

(d) In any case where liability is found against the estate as the result of an action or proceeding brought under subdivision (c), issues of liability as between the estate and the personal representative shall be determined in an accounting proceeding brought pursuant to section twenty-two hundred five of the surrogate's court procedure act.

Here, as the retainer agreement between plaintiff and defendants (NYSCEF Doc. #14), prepared by defendants makes clear, Bresky did not retain defendants in his individual capacity, the contract to retain those attorneys was entered into in the course of his administration of the estate and trust, and he revealed that he was retaining defendants as representative of the estate and trust in his representative capacity. Additionally, there is no representation in the contract that he would be individually liable thereunder. Therefore, pursuant to EPTL § 11-4.7(a), (c ) and (d), the claims in third-party complaint which are solely based upon "contract," (the retainer agreement),which consist of the second cause of action and those claims in the first cause of action allegedly based upon "contract," must fail, and are dismissed pursuant to CPLR § 3211 (a) (1) upon the documentary proof provided by the retainer agreement (see In re Estate of Warhol, 210 AD2d 46 [1st Dept 1994]).

This leaves only the claims in defendants' first cause of action alleging that if any damages were caused to plaintiff, then they were caused wholly or in part by Bresky's "fault and negligence...." (NYSCEF Doc. #9, paragraph 18). Bresky moves to dismiss these claims pursuant to CPLR 3211 (a) (7) claiming that the complaint fails to state a cause of action. In considering such a motion the criteria is whether the pleading states a cause of action within the "four corners" of the complaint containing factual allegations that show a discernable cause of action; if the court so determines that it does, the motion is to be denied (see Guggenheimer v Ginzburg, 43 NY2d 268 [1977]). In doing so, the court is to give the third party plaintiff the [*3]benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83 [1994]; Nonnon v City of New York, 9 NY3d 827 [2007]; Neuman v Echevarria, 171 AD3d 767 [2d Dept 2019]). Although bare legal conclusions and claims contradicted by evidence are insufficient to avoid dismissal, for the purpose of the motion the court is to otherwise deem plaintiff's allegations as true. Here in paragraph 14 of the third-party complaint defendants allege the following facts:

During the course of the representation at issue, the Defendants/Third-Party Plaintiffs requested several items of information from Mr. Bresky necessary for the drafting and filing of the Federal Estate Tax Retum Form 706 and the New York State Estate Tax Return Form ET-706. Despite several attempts by the Defendants/Third-Party Plaintiffs to acquire such necessary information from Mr. Bresky, Mr. Bresky failed to timely provide same. (NYSCEF Doc. #9)

These acts, presumed to be true for the purposes of Bresky's motion, are to be read in conjunction with the claims that constitute negligence contained in paragraph 18 of the third-party complaint.

Reading these allegations in the light most favorable to defendants' claims, they appear to constitute negligence on the part of Bresky in failing to provide essential information to enable defendants to file the tax returns. As stated above, EPTL §11-4.7 (b) allows for a personal representative to be individually liable for obligations involving control of the estate, or for torts, if he/she "failed to exercise reasonable care, diligence and prudence." The statute does not require that such conduct be fraudulent, criminal or intentional conduct. "[Failure] to exercise reasonable care, diligence or prudence" mirrors ordinary negligence ( PJI 2-10). Therefore, if defendants are able to establish their claim that Bresky was negligent, whether by summary judgment or trial, it appears that Bresky could be found to be individually liable.

Although this court believes that it was primarily the intent of the drafters of EPTL § 11-4.7 to provide personal liability for negligence of an estate or trust representative to the beneficiaries of the estate or trust through the procedures set forth in EPTL § 11-4.7 (d), neither party has submitted authority for the proposition that the statute is limited to that, and the court is aware of the general principle stated by the Court of Appeals on a number of occasions that where the language of a statute is clear and unequivocal, it should be construed according to its plain meaning (see Chemical Specialties Mfrs. Ass'n v Jorling, 85 NY2d 382 [1995]; Schoenefeld v State of New York, 25 NY3d 22 [2015]; People v Silburn, 31 NY3d 144 [2018]; People v Tiger, 32 NY3d 91 [2018]).

The court further notes that the holding in Collins v HSBC Bank USA, 305 AD2d 361 (2d Dept 2003) cited by Bresky, actually gives support to defendants' argument that Bresky could be held liable to them for his negligence. Although the Appellate Division granted summary judgment dismissal (CPLR 3212 ) to the administrators of an estate sued individually as third party defendants by HSBC Bank USA, it stated:

Pursuant to EPTL 11—4.7(b), the appellants would be individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if they "failed to exercise reasonable care, diligence and prudence" (EPTL 11—4.7 [b] ). HSBC failed to establish as a matter of law that the appellants failed to exercise reasonable care, diligence, and prudence. (Collins at 362)

By acknowledging that if HSBC had been able to establish, in essence, that the administrators, [*4]"fail[ed] to do an act that a reasonably prudent person would have done under the same circumstances," it would have met its burden and defeated summary judgment, the Second Department recognized that a third-party who was not a beneficiary of the estate, may bring a cause of action against an administrator or trustee for their personal and individual negligence.

As defendants' third-party complaint pleads facts that establish Bresky's negligence, it successfully pleads such a cause of action and Bresky's motion to dismiss pursuant to CPLR 3217 (a) (7) must be denied, no matter what the court may think of its ultimate success under the circumstances presented by the parties in their submissions and at oral argument.

Accordingly, third-party defendant Hunt F. Bresky is to file an answer to the remaining allegation in the third party complaint within ten (10) days of the date of service of notice of entry of this decision and order (CPLR 3211 [f]).

That in order to facilitate discovery, this action is scheduled for a preliminary conference in the court's Differentiated Case Managment Part ("DCM"), Alan D. Oshrin Courthouse, 1 Court Street, Riverhead, New York, on July 14, 2020 at 9:30 AM to enter into a preliminary conference order.

This constitutes the decision and order of the court.