Swain v. Brown

• Decision Date: 18 July 2014
• Docket Number: Index No. 158122/2012
• Court: New York Supreme Court
• Parties: ELLEN SWAIN, as Executrix of the Estate of Arthur Brown, Plaintiffs, v. DELAPWE M. BROWN, Defendant.

2014 NY Slip Op 32022(U)

ELLEN SWAIN, as Executrix of the Estate of Arthur Brown, Plaintiffs, v. DELAPWE M. BROWN, Defendant.

Index No. 158122/2012

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

July 18, 2014

JOAN A. MADDEN.

In 1993, the late Arthur Brown (hereinafter "the Deceased") obtained a decision on appeal to the First Department regarding the distribution of certain marital property ("1993 Decision"). See Brown v. Brown, 191 A.D.2d 301 (1^st Dept 1993), lv dismissed, 82 N.Y.2d 748 (1993). This judgment established the Deceased's ownership of seven Max Weber artworks and 32 Indian miniatures (the "subject works"); however, the subject works were never restored to the Deceased's actual possession. In this action, plaintiff Ellen Swain, the executrix of the Deceased's estate, alleges that the Deceased's ex-wife, defendant Delaine Brown, has "wrongfully" withheld the subject works from the Deceased for the past 21 years and asserts various causes of action seeking to recover them.

Defendant now moves, pursuant to CPLR 3211(a)(1), (5) and (7), for an order dismissing the complaint based on the statute of limitations, documentary evidence, and for failure to state a cause of action. Plaintiff opposes the motion, which is granted in part and denied in part.

Background

Accepting the allegations of the complaint as true (Leon v. Martinez, 84 N.Y.2d 83 [1994]), the following facts emerge: Arthur and Delaine Brown were divorced by judgment entered in 1983 with issues of personal property reserved for a separate trial. Prior to that judgment, Delaine Brown had stored certain items, including the subject works, in the New Yorker Warehouse, which the court directed be placed under "joint control."

By decision and order dated March 23, 1989 ("1989 Decision"), the First Department, inter alia, awarded the Deceased "ownership of those items of personalty [Delaine Brown] admitted in the record was acquired from [the Deceased's] father's apartment; provided that costs of storage for the parties' personal property be shared equally by both parties." Brown v. Brown, 148 A.D. 2d 377, 378 (1^st Dep't 1989).

Thereafter, the Deceased sought an order directing that Delaine Brown transfer to him certain articles of personal property pursuant to the 1989 Decision (presumably including the subject works). The Supreme Court awarded only some of that property which Delaine Brown had conceded to the Deceased owning prior to their marriage. In the 1993 Decision, the First Department specifically awarded the Deceased the subject works, writing that, "[t]he [trial] court erred in failing to award defendant all the Max Weber artworks and Indian miniatures." Brown v. Brown, 191 A.D.2d at 303. As to the remaining items of joint property, the court wrote, "it would be more equitable to direct distribution in kind of the remaining items, upon payment by [the Deceased] of his share of monies owed for storage." Id.

On December 2, 1993, the Deceased's attorney contacted Delaine Brown's attorney and requested the personal property awarded to him by the 1993 Decision to be turned over to him("1993 Demand"). The complaint alleges that subsequent to this request, Delaine Brown "failed to and/or refused to turn over said property" but later entered into an agreement'("Agreement") with the Deceased evidenced by the following communications: A letter in reply to the 1993 Demand from Delaine Brown's attorney dated December 7, 1993 ("1993 Letter") and another letter from the same dated January 27, 1995 ("1995 Letter") (collectively, "The Letters").

The 1993 Letter informed the Deceased that the works had been set aside for him previously and that he "[was] at liberty to take possession without prejudice to any rights or claims that he may have." The 1995 Letter encloses an inventory of the New Yorker Warehouse divided into two categories: Property to be delivered to Delaine Brown and Property to be delivered to the Deceased. The subject works are included in the latter category. The remainder of the letter proposes the terms of turn over and reads:

It is proposed that you and I meet (without our clients) . . . to designate the item of joint property desired by our client. . . . Prior to our meeting, Arthur Brown will execute a general release to Delaine Brown, and Delaine Brown will execute a general release to Arthur Brown which shall be delivered by each client to their respective attorney. . . . Thereafter, Delaine Brown will effectuate segregation of the respective party's property at the New Yorker Warehouse for each party to remove within a reasonable time to be agreed on in writing in advance of our meeting. . . . Will you please advise.

The record contains no evidence of an acceptance of this proposal by the Deceased or his counsel does not otherwise indicate how the parties proceeded after this proposal. The Deceased died in 2011. Plaintiff Ellen Swain, executor of the Deceased's estate, subsequently sent a letter to Delaine Brown dated June 29, 2012, which demanded the immediate return of the subject works ("2012 Demand"). This action was commenced thereafter on November 19, 2012, by filing a summons and complaint. The complaint contains the following six causes of action:breach of agreement, civil contempt, replevin, conversion, fraud and unjust enrichment. Defendant now moves for an order dismissing the complaint based on CPLR §3211(a)(1), (5) and (7).

Discussion

Plaintiff's first cause of action is for breach of contract based on the alleged Agreement between defendant and the Deceased purportedly evidenced by both the 1993 and 1995 Letters annexed to the complaint.

Defendant first argues that the breach of contract claim is time barred pursuant to CPLR 213, which requires an action based on contract to be commenced within six years from the time the cause of action accrues. Defendants maintain that any breach of the alleged Agreement, presumably demonstrated by a refusal to turn over the works, would have occurred, at the latest, in 1995 and therefore, plaintiff's claims are untimely. Moreover, defendants argue that the letters annexed to the complaint do not evidence an enforceable agreement, and thus plaintiff's claim fails to state a cause of action.

In opposition, plaintiff contends that the Agreement does not establish a time frame for Arthur Brown to collect his property and thus the Agreement was breached when defendant allegedly refused to return the works upon plaintiff's demand made shortly before commencing this action in June 2012; thus the claim is not time-barred.

On a motion pursuant to CPLR 3211 (a)(7) for failure to state a cause of action, the complaint must be interpreted in the light most favorable to the plaintiff, and all factual allegations must be accepted as true. Guggenheim v. Ginzburg, 43 NY2d 268 (1977); Morone v. Morone, 50 NY2d 481 (1980). However, "the complaint 'must contain allegations concerningeach of the material elements necessary to sustain recovery under a viable legal theory."' MatlinPatterson ATA Holdings LLC v. Federal Express Corp., 87 A.D.3d 836 839 (1^st Dep't 2011) (quoting Huntington Dental & Med. Co. v. Minnesota Mining & Mfg. Co., 1998 WL 60954, at 3 [S.D.N.Y. 1998]).

To state a cause of action for breach of contract, a plaintiff must establish the existence of an enforceable agreement. See Barber-Greene Co. v. M.F. Pollard Jr., Inc., 239 A.D.655, 657 (3d Dept 1934) aff'd 267 N.Y. 545 (1935). Furthermore, a complaint must specify "the terms of the agreement, the consideration, the performance by plaintiff and the basis for the alleged breach by defendant." Furia v. Furia, 116 A.D.2d 694, 695 (2d Dept 1986). "[T]o constitute an agreement, there must be an unqualified acceptance of the terms of defendant's offer." Malis v. Knapp & Baxter, 196 A.D. 628 (1^st Dep't 1921) (holding the pleadings insufficient because terms of acceptance were inconsistent with terms of offer); see also Barber-Greene Co. v. M.F. Dollard Jr., Inc.. 239 A.D. at 657; see 22 N.Y. Jur. 2d Contracts §52 ("There is no contract unless the offeror assents to the condition or qualification made by the offeree.").

Under these standards, the complaint is insufficient to allege the existence of an enforceable contract. Specifically, the complaint alleges, "[Delaine Brown] entered into an Agreement with the Deceased, whereby she agreed to turn over the aforesaid property." (Complaint, ¶15). Besides conclusively labeling any understanding as "an Agreement," nothing is alleged other than Delaine Brown's unilateral promise to "turn over the aforesaid property." Furthermore, the complaint alleges the existence of said Agreement to be evidenced by "communications attached hereto" which include both the 1993 Letter and the 1995 Letter. (Complaint, ¶11) Both letters are from Delaine Brown's attorneys and do nothing to suggest thatthe Deceased intended to accept any proposal set forth by Delaine Brown or that there was any consideration exchanged for Delaine Brown's "turning over" of the works by which acceptance may be implied at this stage. Thus, the existence of an Agreement cannot be inferred.

As the complaint fails to contain allegations concerning all of the elements for breach of contract, plaintiff's first cause of action must be dismissed for failure to state a cause of action, and the court need not reach issue of whether the claim is barred by the statute of limitations.

In addition, as plaintiff's fifth cause of action, for fraud in the inducement, is premised on the existence of the aforementioned Agreement (See Complaint, ¶30-33), it must also be dismissed.

Plaintiff's second cause of action for civil contempt is based on defendant's alleged failure to comply with the First Department decisions finding that the works were the property of the Deceased. The complaint alleges that because "the Deceased was adjudged to be the rightful owner of the works" pursuant to the 1993 Decision, Defendant's failure to "turn over said...