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Supreme Court, Appellate Division, Fourth Department, New York.

James GODETTE and Phyllis Godette, Plaintiffs-Appellants, v. Orin W. STROWE, Jr., Strowe Agency, Inc., Defendants-Respondents, et al., Defendants.

Decided: November 17, 2006

PRESENT:  HURLBUTT, A.P.J., KEHOE, GORSKI, AND CENTRA, JJ. Goldberg Segalla LLP, Buffalo (Daniel W. Gerber of Counsel), for Plaintiffs-Appellants. Lustig & Brown, LLP, Buffalo (David J. Sleight of Counsel), for Defendants-Respondents.

Plaintiffs appeal from an order granting the motion of Orin W. Strowe, Jr. and Strowe Agency, Inc. (collectively, Strowe defendants) for summary judgment dismissing the complaint against them.   On appeal, plaintiffs contend that Supreme Court erred in granting that part of the motion with respect to the third cause of action, asserting negligence.   We agree.   Plaintiffs alleged that the Strowe defendants were negligent in failing to invest plaintiffs' retirement funds in accordance with plaintiffs' directives and investment profile, and in failing to preserve capital once plaintiffs reached their retirement goal.   Assuming, arguendo, that the Strowe defendants met their initial burden, we conclude that plaintiffs raised a triable issue of fact (see Talansky v. Schulman, 2 A.D.3d 355, 357-360, 770 N.Y.S.2d 48).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstating the third cause of action against defendants Orin W. Strowe, Jr. and Strowe Agency, Inc. and as modified the order is affirmed without costs.