Igarashi v. Higashi
| Decision Date | 18 December 2001 |
| Parties | YOSHIHARU IGARASHI, Appellant,<BR>v.<BR>SHOHAKU HIGASHI, Respondent, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
In view of the documentary evidence, to wit, deeds signed by plaintiff Igarashi at the closings of the four properties in question indicating that both Igarashi and defendant Higashi are owners of the properties, dismissal of the first four causes of action, which essentially claimed that plaintiff was the sole owner of the property, was appropriate. While pleadings should be liberally construed on a motion to dismiss, claims "flatly contradicted by documentary evidence" must be rejected (see, Kliebert v McKoan, 228 AD2d 232, lv denied 89 NY2d 802).
Nevertheless, we reinstate plaintiff's fifth cause of action, which, inter alia, sought sale of the subject properties and an accounting. The IAS court directed an accounting, to which defendant Higashi had consented. In order to retain jurisdiction over any challenges to the completeness or timeliness of the accounting, reinstatement of the cause of action is warranted. Further, we grant leave to Igarashi to amend this cause of action to seek partition, in view of the apparently fractious relationship between the two owners of the property.
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