SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

926 

CA 13-01305 

PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.

 

IN THE MATTER OF THE APPLICATION FOR THE 

RESCISSION OF THE LORIE DEHIMER IRREVOCABLE 

TRUST, SUCCESSOR TO THE MARION A. SEARS TRUSTS.

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LORIE M. DEHIMER, PETITIONER-APPELLANT; 

 MEMORANDUM AND ORDER 

HOWARD P. SEARS, JR., THOMAS A. SEARS AND 

DAVID H. WOOD, TRUSTEES, RESPONDENTS-RESPONDENTS. 

_____________________________________________________ 

IN THE MATTER OF THE APPLICATION FOR THE 

RESCISSION OF THE J. STEVEN DEHIMER IRREVOCABLE 

TRUST, SUCCESSOR TO THE MARION A. SEARS TRUSTS.

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J. STEVEN DEHIMER, PETITIONER-APPELLANT; 

 

HOWARD P. SEARS, JR., THOMAS A. SEARS AND 

DAVID H. WOOD, TRUSTEES, RESPONDENTS-RESPONDENTS.

_____________________________________________________

 

IN THE MATTER OF THE APPLICATION FOR THE 

RESCISSION OF THE WILLIAM DEHIMER IRREVOCABLE 

TRUST, SUCCESSOR TO THE MARION A. SEARS TRUSTS.

------------------------------------------------- 

WILLIAM S. DEHIMER, PETITIONER-APPELLANT; 

 

HOWARD P. SEARS, JR., THOMAS A. SEARS AND 

DAVID H. WOOD, TRUSTEES, RESPONDENTS-RESPONDENTS. 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR

PETITIONERS-APPELLANTS.

BOUSQUET HOLSTEIN PLLC, SYRACUSE (CECELIA CANNON OF COUNSEL), FOR

RESPONDENTS-RESPONDENTS.

 

Appeals from an order of the Surrogate’s Court, Oneida County

(Louis P. Gigliotti, S.), entered December 4, 2012. The order,

insofar as appealed from, granted the motions of respondents to

dismiss the petitions pursuant to CPLR 3211 (a) (7). 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying that part of respondents’

motions to dismiss the claim in each petition for breach of fiduciary

duty, and reinstating each petition to that extent, and as modified
-2- 926 

CA 13-01305 

the order is affirmed without costs. 

Memorandum: Respondents are trustees of certain irrevocable

inter vivos trusts and, in proceedings to rescind those trusts,

petitioners appeal from an order granting the pre-answer motions of

respondents seeking to dismiss the petitions pursuant to CPLR 3211 (a)

(7). We agree with petitioners that Surrogate’s Court erred in

granting that part of respondents’ motions with respect to the claim

for breach of fiduciary duty in each petition, and we therefore modify

the order accordingly.

In considering a motion to dismiss pursuant to CPLR 3211, the

Surrogate must afford the petition a liberal construction and

“determine only whether the facts as alleged fit within any cognizable

legal theory” (Leon v Martinez, 84 NY2d 83, 87-88). “Whether a

[petitioner] can ultimately establish [his or her] allegations is not

part of the calculus” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11,

19). To state a claim to recover damages for breach of fiduciary

duty, petitioners herein must allege: “(1) the existence of a

fiduciary relationship, (2) misconduct by [respondents], and (3)

damages directly caused by [respondents’] misconduct” (Rut v Young

Adult Inst., Inc., 74 AD3d 776, 777; see Armentano v Paraco Gas Corp.,

90 AD3d 683, 684-685; McGuire v Huntress [appeal No. 2], 83 AD3d 1418,

1420, lv denied 17 NY3d 712). We conclude that the petitions

adequately state a claim for breach of fiduciary duty in that they

allege that respondents failed to act in the best interests of

petitioners with respect to their complete distribution of certain

sub-trusts under which petitioners were beneficiaries, and the use of

55% of those distributions to fund newly-created inter vivos trusts

under which petitioners have no beneficial interest. 

We have considered petitioners’ remaining contentions and

conclude that they are without merit.

Entered: November 21, 2014 Frances E. Cafarell

Clerk of the Court