| Russo v Macchia-Schiavo |
| 2010 NY Slip Op 03101 [72 AD3d 786] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Michael Russo, Appellant, v Joanne Macchia-Schiavo etal., Respondents. |
—[*1] Roseman & Roseman, LLP, Melville, N.Y. (Gilbert Roseman of counsel), forrespondents.
In an action, inter alia, to impose a constructive trust, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Satterfield, J.), dated October 1, 2008, which granted thedefendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (2), (5) and (7).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion todismiss the complaint is denied.
The plaintiff commenced this action, inter alia, to impose a constructive trust, alleging thathis niece, the defendant Joanne Macchia-Schiavo, entered into an agreement with his brotherAnthony Russo (hereinafter Anthony) whereby Anthony would transfer his assets toMachia-Schiavo during his lifetime and in his will, and after Anthony's death, Macchia-Schiavowould divide the assets equally between the plaintiff and his sister, the defendant Lucy Macchia.The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), (2), (5) and (7),submitting a copy of Anthony's will, which had been probated by the Surrogate's Court in NewJersey, and affidavits of the defendants and the attorney who drafted Anthony's will. Inopposition, the plaintiff submitted no evidence, relying solely on the allegations in the complaint.In their reply papers, the defendants requested that the motion be considered also as a CPLR3212 motion for summary judgment. The Supreme Court did not convert the motion to a CPLR3212 motion; rather, it granted the motion pursuant to CPLR 3211 (a) (1), (2), (5) and (7). Wereverse.
Inasmuch as the will did not contradict the plaintiff's allegations, the documentary evidencesubmitted by the defendants did not "utterly refute[ ] the plaintiff's factual allegations,conclusively establishing a defense as a matter of law" pursuant to CPLR 3211 (a) (1)(Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon vMartinez, 84 NY2d 83, 88 [1994]). Moreover, the motion should not have been grantedpursuant to CPLR 3211 (a) (7) for failure to state a cause of action. The complaint stated viablecauses of action, and since the motion was not converted into one for summary judgment, theplaintiff was not put on notice of any obligation to come forward with evidentiary support for hisclaims (see [*2]Nonnon v City of New York, 9 NY3d 825, 827 [2007]; EBC I, Inc. v Goldman, Sachs & Co.,5 NY3d 11, 19 [2005]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636[1976]). Finally, contrary to the conclusions of the Supreme Court, the plaintiff's causes of actionare not barred by the doctrine of res judicata (see Matter of Hunter, 4 NY3d 260, 269 [2005]), and the SupremeCourt has subject matter jurisdiction over the plaintiff's causes of action.
The defendants' remaining contention is without merit. Covello, J.P., Angiolillo, Lott andRoman, JJ., concur. [Prior Case History: 2008 NY Slip Op 32979(U).]