| Rubinstein v Salomon |
| 2007 NY Slip Op 09573 [46 AD3d 536] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Steven I. Rubinstein et al., Appellants, v Judith Salomon etal., Respondents. |
—[*1] Ezra Huber & Associates, P.C., Mineola, N.Y., for respondents.
In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that a deed tocertain real property is void, the plaintiffs appeal from an order of the Supreme Court, NassauCounty (Brennan, J.), dated May 24, 2006, which granted the defendants' motion to dismiss thecomplaint pursuant to CPLR 3211 (a) (1), (2), and (7).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion todismiss the complaint is denied.
In 1988, months prior to their marriage, Samuel Rubinstein and the defendant JudithSalomon executed an antenuptial agreement (hereinafter the agreement) in which theyacknowledged owning certain premises as tenants in common and having granted life estates inthe premises to each other. Pursuant to paragraph 7 of the agreement, the parties provided that "ifthe survivor voluntarily conveys or dies, the premises will be sold with the net selling price to bedivided equally." The agreement further provided that it "shall enure to the benefit of and shall bebinding upon the heirs . . . of the parties."
The couple thereafter married, and approximately 10 years later, executed a "ModificationAgreement," which modified paragraph 7 of the agreement by changing the form of ownershipfrom tenancy in common to joint tenancy with rights of survivorship, and provided that "upon thesale of premises, the survivor agrees to pay the deceased's heirs, one half the net proceeds of saidsale." It further provided, inter alia, that "[e]ach party represents to the other that he or she hasdone and will do nothing to encumber title to the premises, except for the lien of the existing[*2]mortgage, if any." Moreover, the modification agreementprovided that "[i]n all other respects, the parties do hereby ratify and confirm [the agreement]."
In 2002 Samuel Rubinstein (hereinafter the decedent) died, and in 2003 Salomon executed adeed (hereinafter the deed) conveying her interest in the subject premises to a revocable livingtrust that she had created, the defendant Salomon asset management trust. The plaintiffs, heirs ofthe decedent, commenced the instant action against the defendants alleging, inter alia, that byconveying the premises to the trust, Salomon had conveyed and encumbered the property inviolation of the terms of the agreement and modification agreement, requiring that the premisesbe sold and the heirs receive their share of the proceeds. The plaintiffs sought, among otherthings, a judgment declaring the deed void and directing the defendants to sell the property anddistribute the proceeds to the plaintiffs in accordance with the terms of the agreement andmodification agreement.
The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), (2), and (7),annexing various documents to their motion papers, including the complaint, the agreement, themodification agreement, and the deed by which Salomon transferred title of the premises to thetrust. The defendants argued, inter alia, that the complaint failed to state a cause of actionbecause the transfer of the premises to the trust did not constitute an "encumbrance" in violationof the modification agreement, nor a "sale" under the terms of the modification agreement suchthat Salomon owed a duty to pay to the plaintiffs their one-half share of any proceeds. Thedefendants also argued that the documentary evidence conclusively established that no such"sale" or "encumbrance" occurred. In addition, since the premises were not "encumbered" inviolation of the modification agreement and no "sale" took place triggering the plaintiffs' right tohalf of the proceeds, the defendants argued that there was no justiciable controversy, and thus,the court lacked subject matter jurisdiction over the action.
In opposition to the defendants' motion, the plaintiffs argued, inter alia, that Salomon'stransfer of the premises to the trust constituted an "encumbrance" on the property such that shebreached the provision in the modification agreement which provided that she would "do nothingto encumber title to the premises." They also argued that the modification agreement did notsupersede or alter the provision of the agreement which provided that if Salomon "voluntarilyconvey[ed]" the premises, the premises "would be sold with the net selling price to be dividedequally." Thus, the plaintiffs argued that a justiciable controversy existed and their complaintstated cognizable causes of actions.
The Supreme Court granted the defendants' motion to dismiss the complaint. We reverse.
"A motion to dismiss pursuant to CPLR 3211 (a) (7) 'will fail if, taking all facts alleged astrue and according them every possible inference favorable to the plaintiff, the complaint statesin some recognizable form any cause of action known to our law' " (Palo v Cronin & Byczek, LLP, 43AD3d 1127 [2007], quoting ShayaB. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38[2006]; see Morone v Morone, 50 NY2d 481, 484 [1980]; 219 Broadway Corp. vAlexander's, Inc., 46 NY2d 506, 509 [1979]; Morad v Morad, 27 AD3d 626 [2006]). A motion to dismiss acomplaint pursuant to CPLR 3211 (a) (1) "may be appropriately granted only where thedocumentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing adefense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]; see Leon v Martinez, 84 NY2d [*3]83, 88 [1994];Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594 [1998];Weiss v Cuddy & Feder, 200 AD2d 665, 667 [1994]).
Viewing the allegations in the complaint in the light most favorable to the plaintiffs (seeLeon v Martinez, 84 NY2d at 87-88), we find that the complaint states cognizable causes ofaction against the defendants for, among other things, a judgment declaring the deed void anddirecting the sale of the property. The complaint contains allegations sufficient to support theplaintiffs' claim that Salomon's transfer of the property into the trust constituted an"encumbrance" in violation of the modification agreement. The allegations also sufficientlysupport the plaintiffs' contention that the modification agreement did not supersede the provisionin the agreement which provided that the property "will be sold with the net selling price to bedivided equally" if Salomon "voluntarily conveys" the premises. Accordingly, the complaintsufficiently avers that by transferring the deed to the trust, Salomon became obligated to sell thepremises and pay the plaintiffs half the proceeds. In this respect, the allegations of the complaintalso present a justiciable controversy. Moreover, such allegations were not "utterly refute[d]" bythe documentary evidence submitted by the defendants in support of that branch of their motionwhich was to dismiss pursuant to CPLR 3211 (a) (1) (see Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d at 326). Accordingly, the Supreme Court should have denied the defendants'motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (2), and (7).
The defendants' remaining contentions are without merit. Rivera, J.P., Goldstein, Skelos andBalkin, JJ., concur.