In the Matter of the Estate of Friedman, 2009 NY Slip Op 31854(U) (N.Y. Surr. Ct. 8/18/2009)
| Decision Date | 18 August 2009 |
| Docket Number | 005491/08,350988,Dec. No. 577 |
| Citation | 2009 NY Slip Op 31854 |
| Parties | Estate of BERTRAM R. FRIEDMAN, a/k/a BERTRAM RUBIN FRIEDMAN, Deceased. RITA FRIEDMAN, Plaintiff, v. CREATIVE LIGHTING FIXTURE CO., INC., ESTATE OF BERT FRIEDMAN, and DECISION MARC FRIEDMAN, Defendants. |
| Court | New York Surrogate Court |
The court has before it a motion to dismiss the amended complaint herein made on behalf of the three defendants on various grounds; and a cross motion seeking partial summary judgment declaring that plaintiff, Rita Friedman (hereafter "plaintiff", "Rita" or "wife") owns 100% of the "Mall Property" and that the "Creative Lease" was either void ab initio or terminated upon decedent's death and is of no further force and effect. The proceeding was initially commenced by the filing of a summons and complaint in Supreme Court, Nassau County and on defendants' motion, removed to the Surrogate's Court by order of Thomas A. Adams, acting Supreme Court Justice, dated September 3, 2008. Pursuant to stipulation, the plaintiff filed an amended complaint and defendants thereafter moved to dismiss the amended complaint.
Decedent Bertram R. Friedman (hereafter "decedent" or "Bert") died on December 20, 2007, a resident of Nassau County. Preliminary letters testamentary were granted to Kenneth Friedman on May 20, 2008 and he is currently the executor of Bert's estate (the "Estate").
From plaintiff's pleading it appears that plaintiff and decedent (her late husband) purchased a parcel of real property located at 460-468 Jericho Turnpike in Mineola, New York (the "Mall Property") on August 10, 1982, as tenants by the entirety.1 The primary tenant within this small strip mall was and remains defendant Creative Lighting Fixture Co., Inc. ("Creative"), a corporation that was solely owned by decedent until such time as he transferred his entire stock interest in Creative to his son, defendant Marc Friedman ("Marc").2 After such transfer, Creative was solely owned by plaintiff's stepson, Marc, and it is alleged that the Mall Property was managed by decedent and/or Marc. In 1999, plaintiff and decedent borrowed $350,000.00 from Greenpoint Bank secured by a mortgage on the Mall Property (the "Greenpoint Loan"). It is alleged that the loan was to accommodate Creative and the proceeds were turned over to and utilized by Creative, with the understanding that the loan would be repaid by Creative. As a further condition Bert promised that Rita would receive income from Creative after Bert's death.3 Plaintiff alleges that on or about May 1, 2003, decedent and Marc, without plaintiff's knowledge or authorization, entered into a "sweetheart" lease (the "Creative Lease"), leasing 65% of the Mall Property to Creative. Defendants indicate that decedent had authority to act on plaintiff's behalf pursuant to a July 19, 1999 power of attorney issued by plaintiff to decedent with respect to the Greenpoint Loan (the "1999 POA"). Plaintiff contends that in early 2006 she learned that Creative had not been making payments on the Greenpoint Loan, but that unknown to her, such loan had been serviced with income from the Mall Property.
The original complaint contained seven causes of action, while the amended complaint pleads ten. They are for a declaratory judgment against the Estate and Creative that the Creative Lease was void ab initio [First Cause of Action]; for a declaratory judgment against the Estate and Creative that the Creative Lease terminated upon Bert's death [Second Cause of Action]; for an accounting against the Estate (for Bert's conduct) and Marc [Third Cause of Action]; for damages based upon fraud against the Estate [Fourth and Fifth Causes of Action]; for damages against the Estate for breach of fiduciary duty respecting collection of the rents from the Mall Property [Sixth Cause of Action]; for damages against the Estate and Marc for breach of fiduciary duty respecting a failure to maximize the value of the Mall Property for the benefit of plaintiff by reason of the lease terms with Creative [Seventh Cause of Action]; for breach of contract as against the Estate and Creative respecting non-payment of the Greenpoint Loan [Eighth Cause of Action]; for unjust enrichment as against all defendants with respect to the Greenpoint Loan and the lease from Bert to Creative [Ninth Cause of Action]; and against Creative for unpaid rent [Tenth Cause of Action].4 Prior to joinder, defendants, all represented by the same counsel, moved to dismiss the amended complaint based upon an alleged lack of jurisdiction over Marc (CPLR 3211[a][8]), failure to state a cause of action (CPLR 3211[a][7]) and upon documentary evidence (CPLR 3211[a][1]). Plaintiff cross moved for partial summary judgment on her first and second causes of action. By decision and order No. 332, dated June 10, 2009, the court advised the parties of its intent to address summary judgment with respect to defendants' motion to dismiss the first and second causes of action and plaintiff's cross motion under CPLR 3211[c].
CPLR 3211(a)(1) provides for the dismissal of an action based upon documentary evidence. In order to obtain such a dismissal, the defendant must establish that the documentary evidence conclusively establishes a defense to the action as a matter of law (Leon v Martinez, 84 NY2d 83 [1994]; see also, 730 J & J LLC v Fillmore Agency, Inc., 303 AD2d 486 [2d Dept 2003]; Berger v Temple Beth-el of Great Neck, 303 AD2d 346 [2d Dept 2003]; Estate of Menon v Menon, 303 AD2d 622, 623 [2d Dept 2003]).
CPLR 3211(a)(7) permits the court to dismiss an action or a cause of action contained in a pleading that fails to state a cause of action. When deciding a motion made pursuant to CPLR 3211(a)(7), the court must accept as true all of the facts alleged in the complaint and any factual submissions made in opposition to the motion (511 West 232rd Street Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]; Sokolof v Harriman Estates Development Corp., 96 NY2d 409 [2001]). The court must also give the pleader the benefit of every inference which may be drawn from the pleading (Leon v Martinez, 84 NY2d 83 [1994]; see also, Dye v Catholic Medical Center of Brooklyn & Queens, Inc., 273 AD2d 193 [2d Dept 2000]).
When considering a motion made pursuant to CPLR 3211(a)(7), the court must read the complaint to determine if the plaintiff has any cognizable cause of action and not whether the cause of action has been properly plead (Guggenheimer v Ginzburg, 43 NY2d 268 [1977]; Rovello v Orofino Realty Co., 40 NY2d 633 [1976]; see also, Frank v DaimlerChrysler Corp., 292 AD 2d 118 [1st Dept 2002]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [2d Dept 1997]; Int'l Oil Field Supply Servs Co. v Fadeyi, 35 AD3d 372, 375 [2d Dept 2006]; Ladenberg Thalmann & Co. v Tim's Amusements, Inc., 275 AD2d 243, 246 [1st Dept 2000]). "In the context of a CPLR 3211 motion to dismiss, the pleadings are necessarily afforded a liberal construction" (Goshen v Mut. Life Ins. Co. of N.Y, 98 NY2d 314, 326 [2002]). The court may consider affidavits submitted to remedy any alleged defects in the pleadings in determining whether the petitioners have a cause of action (Leon v Martinez, 84 NY2d 83, 88 [1994]; Haire v Bonelli, 57 AD3d 1354 [3d Dept 2008]).
While the allegations in the complaint are deemed true and afforded every favorable inference, legal conclusions and facts contradicted on the record are not entitled to such a presumption (In re Loukoumi, Inc., 285 AD2d 595 [2d Dept 2001]; Doria v Masucci, 230 AD2d 764 [2d Dept 1996]). A cause of action may not be predicated on mere conclusory statements unsupported by factual allegations (Kalmanash v Smith, 291 NY 142, 153 [1943]; Taylor v State, 36 AD2d 878 [1st Dept 1971]).
Parties may plead alternative and contradictory theories of liability (Raglan Realty Corp. v Tudor Hotel Corp., 149 AD2d 373 [1st Dept 1989]; CPLR 3014). The same conduct may constitute both a breach of contract and a breach of a fiduciary duty (see Bender Ins. Agency, Inc v Treiber Ins. Agency, Inc., 283 AD2d 448 [2d Dept 2001]; Davis v Dime Savings Bank of New York, 158 AD2d 50 [3d Dept 1990]).
In reviewing a motion to dismiss, the court must interpret the pleadings in favor of the party moved against (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Ozdemir v Caithness Corp., 285 AD2d 961 [3d Dept 2001]). The court must determine whether, "accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated" (People v New York City Transit Authority, 59 NY2d 343, 348 [1983]). A petition will not be dismissed where a cause of action may exist if the petitioner is given every benefit of the doubt (Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]; Hallman v Horowitz, 160 Misc 2d 225 [Dist Ct, Nassau County, 1994]).
Where the motion is brought under §3211(a)(7) based upon documentary evidence, the court will consider whether the documentary evidence submitted in support of the motion "conclusively establishes a defense to the claims asserted as a matter of law" (Ladenberg Thalmann & Co. v Tim's Amusements, Inc., 275 AD2d 243, 246 [1st Dept 2000]). Dismissal is only appropriate where "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mut. Life Ins. Co. of N. Y, 98 NY2d 314, 326 [2002]).
The burden of proof to establish in personam jurisdiction rests upon plaintiff (Reed v Domenech, 90 AD2d 844 [2d Dept 1982]); Cato Show Printing Co., Inc. v Lee, 84 AD2d 947 (4th Dept 1981). Plaintiff has the burden of proving proper service by a preponderance of the evidence (Martini v Powers, 105 AD2d 731 [2d Dept 1984]).
Where a defendant moves to dismiss the complaint on the ground of lack of...
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