50 A.D.3d 877 (2008)

855 N.Y.S.2d 902


Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 15, 2008.

Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendant's motion which were to dismiss the second and fourth causes of action and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

A motion to dismiss pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, "the complaint states in some recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 [2006]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 N.Y.3d 582, 591 [2005]; Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). "[A]ffidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635 [1976]).

The plaintiff's complaint, as amplified by the affidavit she submitted in opposition to the defendant's motion, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (7), adequately stated causes of action alleging aiding and abetting the breach of a fiduciary duty (second cause of action) and aiding and abetting conversion (fourth cause of action) (see Kaufman v Cohen, 307 A.D.2d 113, 125 [2003]; Dangerfield v Merrill Lynch, Pierce, Fenner & Smith, Inc., 2006 WL 335357 [SD NY 2006]; cf. Norwest Mtge. v Dime Sav. Bank of N.Y., 280 A.D.2d 653 [2001]). However, we agree with the Supreme Court that the plaintiff failed to state causes of action alleging breach of fiduciary duty (first cause of action) and scheme to defraud (third cause of action).

To the extent that the plaintiff raises issues regarding that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred, we note that such issues are not properly before us (see Katz v Katz, 68 A.D.2d 536, 542-543 [1979]).


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