Edgar v. Edgar

• Decision Date: 08 October 2015
• Docket Number: INDEX NO.:9163/2014
• Parties: BRUCE EDGAR and VIRGINIA EDGAR, Plaintiffs, v. BRUCE M. EDGAR and JOYCE EDGAR, Defendants.
• Court: New York Supreme Court

2015 NY Slip Op 31947(U)

BRUCE EDGAR and VIRGINIA EDGAR, Plaintiffs, v. BRUCE M. EDGAR and JOYCE EDGAR, Defendants.

INDEX NO.:9163/2014

Supreme Court of the County of Suffolk State of New York - Part XL

October 8, 2015

COPY

Short Form Order

PRESENT: HON. JAMES HUDSON Acting Justice of the Supreme Court

SEQ. NOS.:001-MOT D 003-MD

TSUNIS, GASPARIS & LUSTIG, LLP

By: Christopher P. Ring, Esq.

2929 Expressway Drive North

Islandia, NY 11749

ANTHONY M. GRANDINETTE, ESQ.

Attorneys for Defendant

By: Mirel Fisch, Esq.

114 Old Country Road

Mineola, NY 11501

Upon the following papers numbered 1 to 23 read on this Motion/Order to Show Cause to Compel; Notice of Motion/ Order to Show Cause and supporting papers 1-11; Notice of Cross Motion and supporting papers 0; Answering Affidavits and supporting papers 12-23; Replying Affidavits and supporting papers 0; Other 0; (and after hearing counsel in support and opposed to the motion), it is

ORDERED, that Defendants' motion (seq.# 3) for an order compelling Plaintiffs to comply with a prior order of the court is denied under the circumstances presented. It is further

ORDERED, that Defendants' motion (seq.#1) for an order dismissing Plaintiffs' complaint is granted in part and denied in part (CPLR Rule 3211 [a][1][7]. It is further

ORDERED, that the second, third, fourth, fifth, seventh, eighth and ninth causes of action in Plaintiffs' complaint are dismissed. The tenth, eleventh, fourteenth and fifteenth causes of action shall be deemed as requests for relief under the "wherefore" clause of the complaint. It is further

ORDERED, that Defendants' application (seq.#1) for an order canceling the lis pendens in this matter is denied (CPLR § 6514).

Erubiscit lex filios castagares parentes.^* Whether the observation of the immortal Lord Coke proves to be prescient or inapposite will be resolved at the conclusion of this case.

The matter sub judice arises from a dispute between persons, who according to the accepted (and ancient) tenets of society, should be closely bound by the natural impulses of parental devotion and filial piety. As disquieting as the acrimony between the parties is, however, their relationship cannot diminish, in any way, their respective rights to seek justice in an impartial forum, witness the maxim "consuetudo, licet sit magnæ auctoritatis, nunquam tamen, præjudicat manifestæ veritati."^**

Initially, the Court wishes to commend Mr. Ring and Mr. Grandinette for the eloquence of their respective briefs. The Bench and Bar are well served by such advocates.

In succinct terms the allegations in this case are as follows: Plaintiffs contend that the house in which they reside was the subject of an oral contract of sale with the Defendants and in reliance thereon, maintained and made improvements thereto. Defendants dispute that any sale occurred and contend that Plaintiffs are in effect trespassers at the present time.

Plaintiffs have asserted fifteen causes of action, styled as: (1) constructive trust, (2) breach of agreement, (3) breach of fiduciary duty, (4) breach of covenant of good-faith and fair dealing, (5) unjust enrichment, (6) promissory estoppel, (7) fraud and fraud in the inducement, (8) negligent misrepresentation, (9) seeking an accounting, (10) punitive damages, (11) no remedy at law, (12) costs and fees, (13) declaratory judgment, (14) equitable lien and (15) permanent injunction.

This decision encompasses two applications. The first is a motion (seq.#3) for an Order "compelling Plaintiffs to immediately comply with the Order" of the Court dated March 5, 2015 (amended March 10, 2015). The second application is a motion (seq.#1) for an Order of dismissal and to cancel Plaintiffs' lis pendens (CPLR Rule 3211 and § 6514).

Initially the Court will address Defendants' motion to compel compliance with our March 10, 2015 Order. In that decision, Plaintiffs were directed to pay a certain sum of money to Defendants and to continue making payments during the pendency of these actions. Plaintiffs oppose the application, claiming, inter alia, that they have engaged in good faith efforts to resolve the litigation and are unable to pay the sums directed by the Order.

The Court's original Order is intended to compel obedience by its very terms. In enforcing an order, it is beyond cavil that a court is possessed with certain inherent powers. Those inherent powers, however, have been traditionally narrow and circumscribed to prevent abuse by the bench (Fludd v. Goldberg, 51 A.D.3d 153, 158, 854 N.Y.S.2d 362, 366 [1^st Dept.2008]; Gabrelian v. Gabrelian, 108 A.D.2d 445, 454, 489 N.Y.S.2d 914, 922 [2d Dept. 1985], lv. dismissed, 66 N.Y.2d 741, 497 N.Y.S.2d 365, 488 N.E.2d 111 [1985])."Inherent power is a recognized adjunct to judicial power when a judge must discharge a responsibility, but lacks guidance from explicit legislative or decisional authority" (Alvarez v. Snyder, 264 A.D.2d 27, 35, 702 N.Y.S.2d 5, 13 [1^st Dept. 2000]). This is readily contrasted with the application before us in which there is a clear statutory procedure to follow in order to insure compliance with our order and to punish wilful disobedience to its terms (Judiciary Law §§ 750, 753, 756; Department of Housing Preservation and Development of City of New York v. Deka Realty Corp. 208 A.D.2d 37, 42, 620 N.Y.S.2d 837 [2^nd Dept. 1995]). Accordingly, the motion to compel compliance will be denied with leave to re-file as a motion for contempt.

We now turn to Defendants motion for dismissal (CPLR Rule 3211) and to cancel the lis pendens (CPLR § 6514).

"In considering a motion to dismiss pursuant to CPLR [Rule] 3211 (a) (7), the court should 'accept the facts as alleged in the complaint as true, accord Plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory,'" (Simos v. Vie-Armen Realty, LLC, 92 A.D.3d 760 [2^nd Dept 2012], citing, Sinensky v. Rokowsky

, 22 AD3d 563 [2^nd Dept 2005], quoting Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). Furthermore, "a court may consider evidentiary material submitted by a [party] in support of a motion to dismiss pursuant to CPLR Rule 3211 (a) (7) (see, CPLR Rule 3211 [c]; Sokol v.

Leader, 74 AD3d 1180, 1181 [2^nd Dept 2010]). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]); see also, Sokol v Leader, supra). In this matter, the Court considered all of the exhibits attached to both the moving papers and the papers in opposition and gave appropriate weight to each.

Furthermore, where the motion seeks to dismiss a complaint for failure to state a cause of action, the Court must determine whether, accepting as true the factual averments of the complaint and granting Plaintiffs every favorable inference which may be drawn from the pleading, Plaintiffs can succeed upon any reasonable view of the facts stated, (Bartlett v. Konner, 228 AD2d 532 [2d Dept 1996]). If the pleading states a cause of action and if, from its four corners, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion for dismissal will fail, (Wayne S. v. County of Nassau Dept. of Social Services, 83 AD2d 628 [2^nd Dept 1981]). Additionally, the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the Plaintiff's claim (see, Estate of Menon v. Menon

, 303 AD2d 622, 756 NYS2d 639 [2^nd Dept 2003], citing, Leon v Martinez, 84 NY2d 83, 88, 614 NYS2d 972, 638 NE2d 511, Roth v Goldman, 254 AD2d 405, 406, 679 NYS2d 92).

Defendants argue that any claim of Plaintiffs relating to a contract is barred by the Statute of Frauds on the basis of a failure to reduce the purported understanding to writing (GOL 5-703, derived from 29 Charles II, ch. 3, 8 Stat at Large 405 [1677]).

Plaintiffs do not dispute the absence of a writing. Instead, they contend the oral agreement is enforceable under the part-performance exception to the statute of frauds "[t]he doctrine of part performance may be invoked only if [defendant's] actions can be characterized as unequivocally referable to the agreement alleged. "It is not sufficient...that the oral agreement gives significance to [defendant's] actions. Rather, the actions alone must be unintelligible or at least extraordinary, [and] explainable only with reference to the oral agreement" (Nicolaides v. Nicolaides, 173 A.D.2d 448, 449-50, 569 N.Y.S.2d 968, 969 [2^nd Dept. 1991] citing, Anostario v. Vicinanzo

, 59 N.Y.2d 662, 664, 463 N.Y.S.2d 409, 450 N.E.2d 215, quoting from dissenting opn of Mahoney, J., at 56 A.D.2d 406, 412, 392 N.Y.S.2d 933). A review of the Nicolaides decision and other authority such as Kurlandski v. Kim, 111 A.D.3d 676, 975 N.Y.S.2d 98 (2^nd Dept. 2013), demonstrate that Plaintiffs have failed to sufficiently plead such unequivocal behavior. Accordingly, the second cause of action sounding in breach of contract will be dismissed. We agree with defense counsel that Plaintiffs' third, fourth and eighth causes of action are clearly derived from a breach of contract theory and as such, must also be dismissed.

The Statute of Frauds cannot be used as a shield against a properly pled action sounding in fraud (Channel Master Corp. v. Aluminum Limited Sales, Inc. 4 N.Y.2d 403, 151 N.E.2d 833 [1958]). Nor will it prevent a valid claim invoking promissory estoppel (Ginsberg v. Fairfield-Noble Corp. 81 A.D.2d 318, 440 N.Y.S.2d 222 [1^st Dept. 1981]). The claims sounding in fraud, promissory estoppel and a constructive trust will be discussed ad seriatim.

We will examine the claim of Plai...