Shusterman v. Shusterman

• Decision Date: 09 December 2022
• Docket Number: Index No. 652263/2021,Motion Seq. No. 001
• Parties: CAROL SHUSTERMAN, Plaintiff, v. ROBERT SHUSTERMAN, ALI GOLDSMITH, and AARON GOLDSMITH, Defendants.
• Court: New York Supreme Court

1

2022 NY Slip Op 34219(U)

CAROL SHUSTERMAN, Plaintiff, v. ROBERT SHUSTERMAN, ALI GOLDSMITH, and AARON GOLDSMITH, Defendants.

Index No. 652263/2021, Motion Seq. No. 001

Supreme Court, New York County

December 9, 2022

Unpublished Opinion

PRESENT: HON. VERNA L. SAUNDERS, JSC JUSTICE

DECISION + ORDER ON MOTION

VERNA L. SAUNDERS, JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 were read on this motion to/for DISMISSAL.

On April 6, 2021, plaintiff commenced this action against defendants Robert Shusterman ("Robert"), Ali Goldsmith ("AH"), and Aaron Goldsmith ("Aaron") seeking repayment of multiple allegedly unpaid loans and return of her jewelry and an annuity.^[1] (NYSCEF Doc. No. 2, complaint). Robert is plaintiffs brother, and Ali is Robert's daughter and plaintiffs niece. Aaron is Ali's husband. Ali and Aaron are both practicing attorneys.

On April 30, 2021, Ali and Aaron (collectively "defendants") answered the complaint and counterclaimed for defamation per se, libel frivolous action and harassment, slander, and infliction of emotional distress (NYSCEF Doc. No. 3, answer with counterclaims). Plaintiff filed a reply to the counterclaims on May 7, 2021. (NYSCEF Doc. No. 8, reply). On May 10, 2021, all claims against Robert were dismissed by stipulation. (NYSCEF Doc. No. 9, stipulation of discontinuance).

Defendants now move, pursuant to CPLR 3211(a), for an order dismissing the complaint and, pursuant to CPLR 8303-a and 22 NYCRR 130-1.1, for an award of costs and an order imposing sanctions upon plaintiff. (NYSCEF Doc. No. 10, notice of motion). Plaintiff opposes the motion to dismiss and cross-moves for summary judgment, pursuant to CPLR 3212, seeking dismissal of defendants' counterclaims. (NYSCEF Doc. No. 20, notice of cross motion). After careful review of the record and the relevant case law, defendants' motion seeking dismissal is granted in part; defendants' motion seeking costs and sanctions is denied, and plaintiffs cross-motion for summary judgment is granted.

Addressing first the motion to dismiss, it is well-settled that "[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We 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" (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]).

Pursuant to CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. (see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002].) "A paper will qualify as documentary evidence only if it satisfies the following criteria: (1) it is unambiguous; (2) it is of undisputed authenticity; and (3) its contents are essentially undeniable" (VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 A.D.3d 189, 193 [1st Dept 2019] [internal quotation marks and citation omitted]).

A defendant may also move to dismiss a cause of action on the ground that it is barred by the statute of limitations, where defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired, (see CPLR 3211 [a][5]; Benn v Benn, 82 A.D.3d 548, 548 [1st Dept 2011]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 A.D.3d 815, 816 [2d Dept 2008].) "To meet its burden, the defendant must establish, inter alia, when the plaintiffs cause of action accrued." (Lebedev v Blavatnik, 144 A.D.3d 24, 28 [1st Dept 2016] [internal quotation marks and citation omitted]). "If the defendant meets that burden, then the burden shifts to the plaintiff 'to aver evidentiary facts establishing that the action was timely or to raise a question of fact as to whether the action was timely.'" (Lake v New York Hosp. Med. Ctr. of Queens, 119 A.D.3d 843, 844 [2d Dept 2014], quoting Lessoff v 26 Ct. St. Assoc. LLC, 58 A.D.3d 610, 611 [2d Dept 2009].) "The plaintiff may do so by averring evidentiary facts establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies." (CRC Litig. Trust v Marcum, LLP, 132 A.D.3d 938, 938-939 [2d Dept 2015].)

"On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Pacific W., Inc. v E & A Restoration, Inc., 178 A.D.3d 834, 835 [2d Dept 2019]; see Leon, 84 N.Y.2d at 87-88). When "evidentiary material is submitted ... on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it." (Pacific Western, Inc., 178 A.D.3d at 835; see Leon, 84 N.Y.2d at 88).

Defendants move for dismissal of the complaint on the grounds that plaintiff fails to state a claim and documentary evidence contradicts plaintiffs allegations. Additionally, defendants seek costs and sanctions as against plaintiff asserting that the complaint is frivolous.

Upon review of the pleadings, defendants' motion to dismiss plaintiffs first (Recission -Lack of Consideration) and second (Recission -Unconscionability) causes of action is granted. Rescission of a contract is generally permitted when the breach is "material and willful, or if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties making the contract." (Callanan v Keeseville, Ausable Chasm & Lake Champlain R.R. Co., 199 NY 268, 284 [1910]). Here, no cause of action for rescission is asserted as against defendants, and there are no factual allegations demonstrating that defendants were parties to the contract between plaintiff and Robert. Plaintiff only mentions Aaron's participation in the preparation of the contract and plaintiffs generosity towards Ali and Aaron and their children (NYSCEF Doc. No. 2 at ¶¶ 16-17, 19). The claims appear to only be asserted as against Robert, who is no longer a party to this action (NYSCEF Doc. No. 2 at wherefore clause; NYSCEF Doc. No. 9; NYSCEF Doc No. 29 at 7 ["Robert is no longer a defendant in the instant action"]), and rescission is, thus, unavailable since plaintiff has dismissed a necessary party. (Frymer v Bell, 99 A.D.2d 91, 95 [1st Dept 1984] (^u[i]n an action for rescission, all parties to the agreement must be brought before the court"].)

In her third cause of action, plaintiff seeks repayment of multiple loans and return of her jewelry and annuity. Specifically, plaintiff alleges that she loaned defendants hundreds of thousands of dollars that have not been repaid (NYSCEF Doc No. 2 at ¶ 29 [i]-[ii]).Defendants contend that dismissal is warranted because the [c]omplaint does not afford Movants with any notice as to any specific damages that [p]laintiff allegedly suffered due to [d]efendants['] failure to repay purported loans, let alone the times provided, the terms of repayment, the dates of demand for repayment, etc." (NYSCEF Doc No. 13 at 8-9, memorandum of law). Defendants also argue that several of the transactions occurring in 2014 or earlier are barred by the statute of limitations, i.e., a "$50,000 unrepaid loan to Aaron for the down payment for the purchase of their home, a $70,000 unrepaid payment for Ali and Aaron's second home, $23,000 to Ali and Aaron for the purchase of a co-op apartment, $13,000 in rent for a rental home . . . after their residence was damaged and made uninhabitable after a storm." (NYSCEF Doc. No. 13 at 18).

Plaintiff does not meaningfully dispute defendants' statute of limitations argument in her opposition, (NYSCEF Doc. No. 33 at 3), and except for the $50,000.00 check, plaintiff concedes that the funds related to defendants' housing expenses were gifts (NYSCEF Doc No. 22 at ¶ 14 ["I had previously made some other smaller payments to them for a prior apartment, and for a temporary home after Hurricane Sandy had damaged their home, which I had considered gifts"]). Accordingly, any claims seeking repayment of the $70,000.00, $23,000.00 and $13,000.00 housing-related disbursements are dismissed.

As for the $50,000.00 check, the check presented by plaintiff is dated September 30, 2004 (NYSCEF Doc. No. 23, check), and this action was commenced on April 6, 2021. Thus, the statute of limitations concerning breach of any agreement for repayment would have expired over a decade ago. Additionally, plaintiff concedes the untimeliness of this claim and asserts that the check is only submitted as evidence "to disprove the defendants' repeated contention that no transaction between the parties was ever considered a loan." (NYSCEF Doc. No. 33 at 2, memorandum in reply). Accordingly, any claim for the repayment of the $50,000.00 check dated September 30, 2004, is dismissed (see M & B Joint Venture, Inc. v Laurus Master Fund, Ltd., 12 N.Y.3d 798, 800 [2009] [dismissal appropriate where "plaintiffs own evidentiary submissions conclusively establish [there is] no cause of action." (internal quotation marks and citation omitted)].)

Defendants contend that: all the money they received were inter vivos gifts rather than loans; plaintiff never requested...