                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 11, 2015                      519971
________________________________

BENJAMIN SUTCH,
                     Appellant,
     v

DEBERA C. SUTCH-LENZ, Also
   Known as DEBERA C. SUTCH,
   et al.,                                   MEMORANDUM AND ORDER
                    Defendants,
      and

DEAN M. COON, as Guardian ad
   Litem of BENJAMIN SUTCH,
   an Infant,
                    Respondent.
________________________________


Calendar Date:    April 30, 2015

Before:   Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.

                              __________

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

      Smith, Sovick, Kendrick & Sugnet, PC, Syracuse (Brady J.
O'Malley of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Nolan Jr., J.),
entered July 2, 2014 in Saratoga County, which, among other
things, granted defendant Dean M. Coon's motion for summary
judgment dismissing the complaint against him.

      The underlying facts are fully set forth in our prior
decision involving a virtually identical appeal brought by
                              -2-                  519971

plaintiff's sister, Jessica Sutch, wherein this Court affirmed
Supreme Court's order granting a motion by defendant Dean M. Coon
(hereinafter defendant) for summary judgment dismissing the
complaint against him (Sutch v Sutch-Lenz, ___ AD3d ___, 2015 NY
Slip Op 04693 [2015]). Upon reviewing the record on appeal in
this case, we find that the allegations of legal malpractice and
breach of fiduciary duty asserted against defendant, as well as
the arguments raised by plaintiff on the present appeal, mirror
those raised by plaintiff's sister on her prior appeal – as does
the evidence tendered in support of defendant's motion for
summary judgment dismissing plaintiff's complaint and the proof
submitted by plaintiff in opposition thereto. Accordingly, as
plaintiff's arguments and proof relative to defendant's
representation of him are indistinguishable from those previously
raised by his sister, 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.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
