Harris v. Harris

• Decision Date: 06 April 2021
• Docket Number: 13465,Case No. 2020-03015,Index No. 656962/17
• Citation: 193 A.D.3d 457,148 N.Y.S.3d 1
• Court: New York Supreme Court — Appellate Division
• Parties: Bernice L. HARRIS et al., Plaintiffs–Appellants, v. Betsy HARRIS also known as Betsy Savage et al., Defendants–Respondents, Andrew Lichtenstein et al., Defendants–Appellants.

193 A.D.3d 457

148 N.Y.S.3d 1

Bernice L. HARRIS et al., Plaintiffs–Appellants,

v.Betsy HARRIS also known as Betsy Savage et al., Defendants–Respondents,Andrew Lichtenstein et al., Defendants–Appellants.

13465

Index No. 656962/17

Case No. 2020-03015

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

ENTERED April 6, 2021

Beys Liston & Mobargha LLP, New York (Nader Mobargha of counsel), for Bernice L. Harris and Allison Harris Schifini, appellants.

Kevin Kerveng Tung, P.C., Flushing (Kevin K. Tung and Daniel Murphy of counsel), for Andrew Lichtenstein and TJ Montana Enterprises, LLC, appellants.

Tamara Harris, respondent pro se.

Agulnick & Gogel LLC, Port Washington (William Gogel of counsel), for Betsy Harris, respondent.

Gische, J.P., Singh, Scarpulla, Mendez, JJ.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered April 30, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment on their first cause of action, unanimously reversed, on the law, without costs, the motion granted, and it is declared that, upon the death of nonparty Steven Harris, Bernice Harris succeeded to his membership interest in nominal defendant TJ Montana Enterprises, LLC (TJ). Appeal by nominal defendants Andrew Lichtenstein and TJ unanimously dismissed, without costs, as taken by nonaggrieved parties.

This is a dispute between the widow and marital child of the deceased (plaintiffs), and the person whom the deceased refers to as his "loving partner" and nonmarital child of the deceased (defendants-respondents) over the ownership of part of nominal defendant TJ.

Lichtenstein says that his 50% ownership stake in TJ will be unaffected regardless of the ownership of the stake disputed by plaintiffs and defendants-respondents. The order appealed from did not even determine the ownership of the disputed stake; it merely found issues of fact. Hence, Lichtenstein is not "aggrieved" within the meaning of CPLR 5511 and may not appeal (see e.g. State of New York v. Philip Morris Inc., 61 A.D.3d 575, 578, 877 N.Y.S.2d 291 [1st Dept. 2009], appeal dismissed 15 N.Y.3d 898, 912 N.Y.S.2d 568, 938 N.E.2d 1002 [2010] ).

Contrary to defendants-respondents' claim, the copies of TJ's operating agreement submitted by plaintiffs are admissible. The copy annexed to the affirmation by plaintiffs' counsel, who had no personal knowledge, is admissible "as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form, e.g., documents" ( Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] [internal quotation marks omitted]). The copy annexed to Lichtenstein's affidavit is not barred by the Dead Man's Statute ( CPLR 4519 ) because Lichtenstein is not an interested person for the purpose of the statute (see Matter of Press, 30 A.D.3d 154, 156–157, 816 N.Y.S.2d 441 [1st Dept. 2006] ; Laka v. Krystek, 261 N.Y. 126, 130, 184 N.E. 732 [1933] ).

Plaintiffs correctly contend that there is no issue of fact as to whether the operating agreement is an unenforceable agreement to agree. The operating agreement did not leave material terms for future negotiations (cf. Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541 [1981] ; see id. at 108, 436 N.Y.S.2d 247, 417 N.E.2d 541 ["the Tenant may renew this lease for an additional period of five years at annual rentals to be agreed upon"] [internal parentheses and quotation marks omitted]). On the contrary, it said, "This agreement shall be retyped and redrawn and prepared in a proper and formal fashion containing the text and substance of this agreement." The fact that the operating agreement referred to a "formal agreement" and "a later time" is not determinative (see e.g. Moshan v. PMB, LLC, 141 A.D.3d 496, 36 N.Y.S.3d 445 [1st Dept. 2016] ).

While the December 1994 operating agreement refers to a limited liability company or partnership to be formed to hold title to a particular property, there is no dispute that TJ – a Delaware limited liability company – was formed on December 20, 1994.

None of the discrepancies raised by defendants-respondents affects the provisions at issue. For instance, even if the first three...