Opinion
656279/2018
07-15-2020
Gabriel TOP, Plaintiff, v. Renee GLICKLICH, Melhem Ibrahim, and Renee Glicklich as Temporary Administrator of the Estate of Dana Natalia Glicklich, Defendants.
Seward & Kissel LLP, New York, NY (Mark D. Kotwick, Shrey Sharma, and Michaelene K. Wright of counsel), for plaintiff. McLaughlin & Stern, LLP, New York, NY (Laura Joy Lattman of counsel), for defendants.
Seward & Kissel LLP, New York, NY (Mark D. Kotwick, Shrey Sharma, and Michaelene K. Wright of counsel), for plaintiff.
McLaughlin & Stern, LLP, New York, NY (Laura Joy Lattman of counsel), for defendants.
Gerald Lebovits, J.
In this action, plaintiff, Gabriel Top sued defendant Renee Glicklich (Glicklich), both in her personal capacity and as the temporary administrator of the estate of her late mother, Dana Glicklich. Plaintiff now moves under CPLR 1021 to substitute Glicklich in her representative capacity as executor of her mother's estate in place of Glicklich in her representative capacity as temporary administrator. In response, defendants state that Glicklich consents to this substitution and to this court's exercise of personal jurisdiction over her as executor. Defendants cross-move, though, for leave to interpose an answer to plaintiff's claims against Glicklich-as-executor, and also for leave to amend their previously filed motion to dismiss to add a new ground for dismissal.
Plaintiff's motion to substitute is granted. Defendants' cross-motion is denied.
BACKGROUND
Plaintiff's complaint in this action asserts causes of action for breach of fiduciary duty, fraud in the inducement, and unjust enrichment. Plaintiff sued several defendants, including both Glicklich and her late mother Dana. Glicklich had been appointed by Surrogate's Court, New York County (Anderson, S.) as temporary administrator of her mother's estate, pending her appointment as executor. The complaint therefore named Glicklich both in her individual capacity and in her representative capacity as temporary administrator.
In December 2019, defendants filed a motion to dismiss under CPLR 3211 (a) (1), (a) (3), and (a) (4), returnable in January 2020. (See NYSCEF No. 22.) Defendants' motion papers argued that documentary evidence conclusively established that plaintiff's asserted attorney-in-fact (his son, David Top) had lost the legal capacity to act on his father's behalf in light of Gabriel Top's (asserted) revocation of the power of attorney conferring that capacity. (See NYSCEF No. 23, at 5-7.) Defendants also argued that plaintiff's action should be dismissed in favor of a prior proceeding in Surrogate's Court, New York County, adjudicating probate proceedings related to Dana Glicklich's estate, or in the alternative removed to Surrogate's Court for consolidation with the probate proceedings. (See id. at 7-11.)
The motion to dismiss was fully briefed in mid-January 2020, and was calendared to be argued before this court on April 22, 2020. On March 2, 2020, Surrogate's Court appointed Glicklich as executor of her mother's estate and simultaneously revoked her appointment as temporary administrator. (See NYSCEF No. 83 at 3.)
Oral argument was canceled in light of COVID-19; the motion was therefore scheduled to be taken on submission on the papers by the court on April 22.
On April 21, 2020—the day before the motion to dismiss was to be submitted—counsel for defendants notified counsel for plaintiff of the change in Glicklich's representative capacity. Counsel for defendants suggested as a result of that change in capacity plaintiff's action was now subject to dismissal for lack of a proper defendant. (See NYSCEF No. 76 at 5.)
The parties then contacted this court, which held a telephonic conference about this issue in early May 2020 and requested letter briefing from the parties about the proper way to resolve the issue. (See Top v. Glicklich , 2020 NY Slip Op. 50581 [U], at *1-*2 [Sup Ct, NY County May 18, 2020].) Plaintiff contended that this court could sua sponte substitute Glicklich-as-executor for Glicklich-as-temporary-administrator, but in the alternative expressed a willingness to move for that relief. (See NYSCEF No. 63.) Defendants contended that the question of what to do about Glicklich's change in capacity was difficult, that it merited full briefing, and that the very difficulty of the issue further militated in favor of dismissing the action in this court in favor of the pending proceeding in Surrogate's Court. (See NYSCEF No. 64.)
Given the proper-party issue, this court is holding defendants' fully briefed motion to dismiss in abeyance until that issue is resolved.
Upon considering the parties' letter briefs, this court held that it lacked authority to substitute in Glicklich-as-executor sua sponte. (See Top , 2020 NY Slip Op. 50581 [U], at *2-3.) The court concluded that the proper course was instead for plaintiff to move to substitute (and to serve the motion to substitute on Glicklich in accordance with CPLR article 3). The court gave plaintiff 30 days from entry of the order to move for leave to substitute. (Id. at *3.)
On June 11, 2020, plaintiff moved to substitute, per this court's order. The motion was returnable on July 13, with defendants' response to the motion due on July 6 under CPLR 2214 (b). (See NYSCEF No. 74 [notice of motion].) Late in the evening of July 6 and the evening of July 7, defendants filed papers responding to the motion. (See NYSCEF Nos. 78-87.)
In defendants' response papers, Glicklich represents through her counsel that she consents to her substitution as executor of her mother's estate (instead of as temporary administrator), and that she consents to the personal jurisdiction of this court. (See NYSCEF No. 82.) Notwithstanding this consent, defendants also now cross-move for leave to raise new challenges to the timeliness of some of plaintiff's claims as against Glicklich-as-executor, and seek leave to amend defendants' pending motion to dismiss to raise new challenges to the timeliness of some of plaintiff's claims as against all defendants.
Given the seven-day demand in plaintiff's notice of motion, defendants were required to have served their notice of cross-motion and supporting papers by July 6. (See CPLR 2214 [b].) As noted above, they did not do so. Nor do they provide an explanation or excuse for serving the cross-motion untimely. The cross-motion is subject to denial on that ground alone. (See D'Aniello v. T.E.H. Slopes, Inc. , 301 AD2d 556, 558 [2d Dept 2003].) This court has chosen instead, though, to afford plaintiff an additional day to reply to defendants' cross-motion and then to adjudicate the merits of the cross-motion.
DISCUSSION
I. The Branch of the Motion and Cross-Motion Addressing Substitution
As an initial matter, this court concludes that plaintiff's showing in support of his motion for leave to substitute satisfies the requirements of CPLR 1021. And Glicklich expressly consents to her substitution. Ordinarily, this court would simply grant the motion to substitute. But defendants argue in their cross-motion papers that some of plaintiff's claims would be untimely with respect to Glicklich-as-executor. (See NYSCEF No. 80 at 3-6 [proposed amended motion to dismiss].) Such a timeliness defect would in turn render substitution partially or wholly futile. The court thus deems it appropriate to consider this argument on its merits prior to substituting Glicklich-as-executor for Glicklich-as-temporary-administrator.
Defendants' papers on the motion and cross-motion do not explain why these limitations-based arguments are only being asserted now, rather than several months ago when the proper-party issue first arose.
Defendants argue, in essence, that for limitations purposes the claims against Glicklich-as-executor should be treated as not having been asserted until 2020—rendering those claims untimely unless they relate back to the original complaint under CPLR 203. This argument is creative but unpersuasive.
Defendants' papers focus on how the relation-back doctrine governs newly asserted claims. But that focus begs the question whether the doctrine is even applicable here. Defendants provide no authority for the proposition that where one named defendant is substituted in place of another named defendant under CPLR 1021, a plaintiff's existing claims against the substituted-out defendant must independently satisfy the statute of limitations with respect to the substituted-in defendant, or else qualify for relation back.
This proposition also appears undesirable when considered on a clean slate. Defendants' proposed approach to timeliness would have nothing to do with a plaintiff's diligence in bringing a complaint (or in seeking substitution under CPLR 1021 ), with affording adequate notice to a defendant (or potential defendant) of the factual allegations and legal claims against them, or with the risks of stale claims and dissipated evidence. Instead, whether a plaintiff could proceed on already-filed claims against a newly substituted defendant would effectively depend instead on how far into the litigation the substitution occurred and the interaction between the nature of that substitution and the relation-back doctrine. That makes little sense. This court declines to be the first to impose such a rule.
This court therefore concludes that plaintiff's motion to substitute should be granted, and Glicklich-as-executor's challenge to the timeliness of plaintiff's claims as against her should be denied.
II. The Branch of Defendants' Cross-Motion Addressing Amendment of the Pending Motion to Dismiss
The court's conclusion on the issue of substitution does not fully resolve the motion and cross-motion. Defendants also are cross-moving for leave to amend their pending motion to dismiss. Defendants seek to challenge for the first time the timeliness of several of plaintiff's claims as against all defendants, not just Glicklich-as-executor. This branch of defendants' cross-motion is denied as well.
Defendants' request to amend their motion to dismiss is made under CPLR 3025. But that provision does not apply here. The plain terms of CPLR 3025 permit a party, with leave of court, to "amend his or her pleading , or supplement it by setting forth additional or subsequent transactions or occurrences"; and they require that a "motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading." ( CPLR 3025 [b] [emphases added].)
As defendants themselves candidly concede (see NYSCEF No. 79 at 1), a motion to dismiss—or memorandum of law in support of a motion—is not a pleading. (See CPLR 3011 [itemizing types of pleadings]; see also 315 W. Enters. LLC v. Robbins , 171 AD3d 466, 467 [1st Dept 2019], citing Harris v. Ward Greenberg Heller & Reidy LLP , 151 AD3d 1808, 1809 [4th Dept 2017] ["a motion to dismiss is not a pleading"].) Defendants provide no New York decision holding that a motion to dismiss can be amended pursuant to CPLR 3025. And this court's research has not uncovered such a decision, either.
Defendants rely at most on a single trial-court decision concluding that notices of motion should be treated as pleadings for purposes of the liberal-construction rule of CPLR 3026. (See Kearney v. Kearney , 42 Misc 3d 360, 364 [Sup Ct, Monroe County 2013].) That limited conclusion does not support the distinct and far broader rule for which defendants advocate here.
Defendants' cross-motion, moreover, itself demonstrates why equating motions to dismiss with pleadings for purposes of CPLR 3025 is unwise. When defendants moved to dismiss in December 2019, they carefully specified the grounds under CPLR 3211 (a) on which they were, and were not, moving. And the parties briefed the motion accordingly. Yet now, more than six months after the extant motion to dismiss was fully briefed, defendants seek to use an unrelated procedural matter as their chance to throw in a completely different ground for dismissal—apparently because it is "economical" to do so now whereas it would have been "imprudent" to do so before. (NYSCEF No. 79 at 2, 4.) But defendants had a full opportunity to chart their own course as to which grounds for dismissal they wished to advance at the pleading stage. This court declines defendants' request to take a new tack now.
For similar reasons, this court declines to consider defendants' new proposed argument that plaintiff's claim with respect to one of the challenged monetary transfers should be denied in part under the moiety rule. (See NYSCEF No. 80 at 3.)
Accordingly, it is hereby
ORDERED that plaintiff's motion to substitute is granted, and it is further
ORDERED that defendants' cross-motion is denied; and it is further
ORDERED that Renee Glicklich in her representative capacity as Executor of the Estate of Dana Natalia Glicklich is hereby substituted as a defendant in place of Renee Glicklich in her representative capacity as Temporary Administrator of the Estate of Dana Natalia Glicklich, without prejudice to any proceedings heretofore had herein; and it is further
ORDERED that all papers, pleadings, and proceedings in this action be amended by substituting the name of Renee Glicklich in her representative capacity as Executor of the Estate of Dana Natalia Glicklich in place of Renee Glicklich in her representative capacity as Temporary Administrator of the Estate of Dana Natalia Glicklich, without prejudice to any proceedings heretofore had herein; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of its entry on all parties and on the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed to amend their records to reflect the change in the caption.