Opinion
No. 1735/09.
2013-02-28
Jeffrey ASINOFF, Plaintiff, v. Mitchell ASINOFF, Individually and As Executor–Trustee of the Estate of Isidore Asinoff, Defendant.
The Law Firm of Alfredo P. Conti, Esq., Staten Island, for plaintiff. Bruce Reznick, PC, Brooklyn, for defendant.
The Law Firm of Alfredo P. Conti, Esq., Staten Island, for plaintiff. Bruce Reznick, PC, Brooklyn, for defendant.
DAVID I. SCHMIDT, J.
Upon the foregoing papers, defendant Mitchell Asinoff moves for an order, pursuant to CPLR 3211, dismissing plaintiff Jeffrey Asinoff's complaint.
Background and Procedural History
Plaintiff and defendant are brothers. In his complaint, plaintiff alleges that, while he was in a coma, defendant and Isidore Asinoff, the parties' father, transferred $97,000 out of plaintiff's bank account and took possession of the funds. Plaintiff further alleges that at the time of the execution of Isidore's last will and testament, Isidore announced to plaintiff, defendant and other witnesses to the will, that plaintiff was not to be named in the will, but that defendant was to share equally with plaintiff every testamentary bequest made by Isidore to defendant. Isidore died on November 11, 2006. The will named defendant as executor and as a beneficiary; plaintiff was not named in the will, either as a fiduciary or beneficiary. While plaintiff filed an objection to the issuance of letters testimony to defendant in Surrogate's Court, he did not object to the admission of the will to probate. On May 28, 2009, Surrogates Court, Kings County, dismissed plaintiff's objections, holding that he did not have standing to object to the appointment of defendant as executor of the will. Prior to that decision, in January 2009, plaintiff filed this action. Defendant joined issue by serving an answer on March 20, 2009. A note of issue was filed on August 29, 2011. On or about July 2, 2012, this motion ensued.
Discussion
Defendant brings this motion pursuant to CPLR 3211, but does not specify what subsections he is relying upon. A perusal of the motion papers makes it clear that defendant is moving pursuant to subsections (5) res judicata and collateral estoppel and (7) failure to state a cause of action. In opposition, plaintiff argues that defendant's motion mus be dismissed because it is untimely, having been filed well over 120 days after the filing of the note of issue. For this proposition, plaintiff cites Brill v. City of New York (2 NY3d 648, 651 [2003] [a motion for summary judgment may not be made beyond 120 days following the filing of the note of issue without “leave of court on good cause shown”] ). However, Brill and the statutory section on which it is based, CPLR 3212(b), apply to motions seeking summary judgment. not ones seeking dismissal pursuant to CPLR 3211.
Nonetheless, CPLR 3211(e) discusses the timeliness of certain dismissal motions. In this regard, the court notes that while a motion to dismiss pursuant to section CPLR 3211(a)(7) may be raised at any time, arguments sounding in res judicata and collateral estoppel are waived if not raised in the answer or a pre-answer motion to dismiss. As defendant did not raise the issue of res judicata or collateral estoppel, pertaining to the Surrogate's Court proceedings in his answer, such arguments may not be considered on this motion.
The court notes that defendant failed to annex the complaint to his motion. While not statutorily required ( cfCPLR 3212 [“A motion for summary judgment shall be supported ... by a copy of the pleadings”] ), it is beyond cavil that a motion pursuant to CPLR 3211(a)(7) arguing “the pleading fails to state a cause of action” must contain the pleading that motion is based upon. The court has, nevertheless, procured a copy of the pleading from the County Clerk.
However, even were the court to consider defendant's res judicata and collateral estoppel arguments, it would find such arguments unpersuasive. Plaintiff's action sounds in constructive trust, and the action as pled is independent of Isidore's will. Consequently, the arguments sounding in res judicata and collateral estoppel, based upon the decision of the Surrogate's Court are inapplicable to the instant action.
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Morris v. Morris, 306 A.D.2d 449, 451 [2003] quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977] ). When reviewing the pleadings, the court must “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] ). Further, “[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005] ).
“The elements of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment” (Rock v. Rock, 100 AD3d 614, 616 [2012] [internal quotation marks omitted] ). In his complaint, plaintiff alleges that, while he was incapacitated, his brother removed $97,000 from plaintiff's bank account. Plaintiff also alleges that defendant promised plaintiff that he would transfer half of his inheritance under Isidore's will to plaintiff. In addition, plaintiff avers that his brother has unjustly retained the $97,000. That plaintiff and defendant were both signatories to the bank account in question certainly indicates the existence of a fiduciary relationship between the brothers. Moreover, defendant does not deny the existence of a fiduciary relationship. Hence, all the elements of a cause of action for constructive trust are present.
Alternatively, plaintiff, although not technically pleading a cause of action for conversion, has established the elements of such claim in his complaint. “A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession” (Colavito v. New York Organ Donor Network, Inc., 8 NY3d 43, 49–50 [2006] ). Plaintiff's allegation that $97,000 that belonged to him was taken out of his bank account and that, upon demand, defendant refused to return the money sets forth a cause of action for conversion.
Finally, defendant presents a chronology of events and seeks to import an improper intent on the part of plaintiff to support a claim that the alleged agreement should be disallowed. However, defendant's arguments that the complaint should be dismissed because of illegality of contract is not appropriate on this motion to dismiss. The submissions by defendant, in his moving papers, are insufficient to establish, as a matter of law, that the contract is illegal and that the withdrawal of the monies from plaintiff's account was done pursuant to a fraudulent scheme. Accordingly, it is
ORDERED that defendant's motion is denied.
The foregoing constitutes the decision and order of the court.