Opinion
10079 Index 153156/16
10-15-2019
Aleida E. CASANAS, Plaintiff–Appellant, v. The CARLEI GROUP, LLC, et al., Defendants–Respondents.
Aleida E. Casanas, appellant pro se. Rosenberg & Estis, P.C., New York (Alexander Lycoyannis of counsel), for respondents.
Aleida E. Casanas, appellant pro se.
Rosenberg & Estis, P.C., New York (Alexander Lycoyannis of counsel), for respondents.
Sweeny, J.P., Tom, Mazzarelli, Oing, Singh, JJ.
The motion court correctly dismissed the cause of action relating to the individual parties' father's estate without prejudice to refiling in Surrogate's Court, the proper forum for such claims ( SCPA 201[3] ). The court also correctly dismissed without prejudice the cause of action seeking an accounting, as the individual parties' sibling relationship, standing alone, is insufficient to establish a fiduciary duty that would entitle plaintiff to an accounting in this case (see Castellotti v. Free, 138 A.D.3d 198, 209, 27 N.Y.S.3d 507 [1st Dept. 2016] ). Defendants failed to establish prima facie that the two purported leases are invalid and unenforceable. Issues of fact exist as to whether the parties' course of conduct demonstrates that the consideration for the waiver of rent in each lease, i.e., 20 hours of "work" per week, is sufficiently definite to satisfy the statute of frauds ( General Obligations Law § 5–703[2] ) (see Aiello v. Burns Intl. Sec. Servs. Corp. , 110 A.D.3d 234, 244, 973 N.Y.S.2d 88 [1st Dept. 2013] ; see also generally William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976 [2013] ). Issues of fact also exist as to defendants' claim that the individual defendant, plaintiff's brother, lacked knowledge of the purported leases and that therefore plaintiff was a mere licensee. There is evidence that plaintiff had sublet the two units for several years under written subleases naming her "Overtenant," and her brother did not deny that plaintiff had sublet one of the apartments to him for several years (see Provident Bay Rd., LLC v. NYSARC, Inc. , 117 A.D.3d 1356, 1358, 987 N.Y.S.2d 124 [3d Dept. 2014] ).
Defendants also failed to establish that the leases were not validly executed.