In re the Estate of Gandolfo

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered January 24, 1996, which granted defendant’s motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

The alleged breach of confidential or fiduciary duty occurred almost a year after the death of plaintiffs’ decedent. Accordingly, plaintiffs’ causes of action did not yet exist in decedent’s favor as of his death (cf., EPTL 11-3.2 [b]), and plaintiffs cannot press a cause of action that was not viable during decedent’s life (see, Sweets v Behrens, 88 AD2d 745, 746). We have…