| Goldberg v Rosenberg |
| 2014 NY Slip Op 02750 [116 AD3d 919] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Sanford B. Goldberg, Appellant, v Gail Rosenberg,Respondent, et al., Defendants. |
—[*1] Henry & Regan-Henry, White Plains, N.Y. (John V. Henry of counsel), forrespondent.
In an action, inter alia, to set aside an amendment to a trust, the plaintiff appeals froman order of the Supreme Court, Westchester County (Tolbert, J.), entered June 15, 2012,which granted the motion of the defendant Gail Rosenberg to dismiss the complaint in itsentirety.
Ordered that the order is affirmed, with costs.
This action involves a dispute between the plaintiff and his sister, the defendant GailRosenberg, over the distribution of the property of their deceased mother (hereinafter thedecedent) pursuant to the terms of a pour-over trust. The plaintiff seeks to set aside anamendment in 2004 to the terms of the pour-over trust, limiting his share of the trust to a$1,000 savings bond.
In 1999, the plaintiff's parents both executed a pour-over trust with the assistance oftheir lawyer, Martin Hersh. The original terms of the decedent's pour-over trust providedthat, upon the decedent's death, if her husband predeceased her, the trust estate would beequally divided between her three children, the plaintiff, Gail Rosenberg, and WalterGoldberg. The decedent appointed herself as trustee, Rosenberg as successor trustee, andher son Walter Goldberg as alternate successor trustee.
The plaintiff's father died in January 2003. In December 2004, the decedent, with theassistance of Hersh, amended her trust to distribute, upon her death, her cooperativeapartment in Brooklyn and her jewelry to Rosenberg, to distribute savings of $1,000 eachto the plaintiff and other relatives, and to distribute the remainder of her property uponher death equally to Rosenberg and Walter Goldberg.
In 2009, the decedent moved to New Jersey and lived in an adult community. Shedied on July 26, 2010, survived by her three children. The decedent's will was admittedto probate in New Jersey over the plaintiff's objection.[*2]
The plaintiff seeks to set aside the 2004amendment to the pour-over trust, alleging overreaching and undue influence, lack ofcapacity, and fraud, and seeks an accounting and to remove Rosenberg as trustee. Thegravamen of the plaintiff's contentions, as alleged in the complaint, was that "[u]poninformation and belief, at the time of the execution of the Alleged Amended Trust, thedefendant Rosenberg and others manipulated [the decedent], made fraudulentmisrepresentations to her, and insinuated themselves into [the decedent's] life, using theirfamily or other close personal relationships, as well as [the decedent's] deterioratedcondition, to create for themselves a position of trust and confidence with [the decedent],so dominating her life and overcoming her free will as to cause her to be unable to resistthe influence of defendants to dispose of her property and possessions in a mannercontrary to her true wishes."
Rosenberg moved to dismiss the complaint in its entirety, inter alia, pursuant toCPLR 3211 (a) (7) for failure to state a cause of action. The plaintiff, in opposition,acknowledged that there was ongoing animosity between himself and Rosenberg, butalleged that during frequent visits and conversations between himself and the decedent,the decedent stated that she was proud of all of her children and grandchildren andwanted them taken care of and treated equally. A great niece of the decedent alsosubmitted an affidavit stating that, during a family gathering, the decedent assured herthat she loved all her children and grandchildren and they would be treated equally whenshe died.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to statea cause of action, the court must afford the pleading a liberal construction, accept allfacts as alleged in the pleading to be true, accord the plaintiff the benefit of everypossible favorable inference, and determine only whether the facts as alleged fit withinany cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Asgahar v Tringali Realty,Inc., 18 AD3d 408 [2005]). "However, bare legal conclusions are not presumedto be true, nor are they accorded every favorable inference" (Breytman v Olinville Realty,LLC, 54 AD3d 703, 704 [2008]; see Morris v Morris, 306 AD2d 449,451 [2003]; Doria v Masucci, 230 AD2d 764, 765 [1996]). Applying theseprinciples here, the Supreme Court properly granted those branches of Rosenberg'smotion which were to dismiss those causes of action which sought to invalidate thedecedent's pour-over trust based upon undue influence, fraud, and lack of capacity, onthe ground that the plaintiff's allegations constituted legal conclusions (see CPLR3211 [a] [7]; Paolino vPaolino, 51 AD3d 886, 888 [2008]; cf. Matter of Tognino, 87 AD3d 1153 [2011]). Similarly,the allegations set forth in the plaintiff's affidavits in opposition to the motion wereinsufficient to state a cause of action (see Becker v University Physicians ofBrooklyn, 307 AD2d 243, 245 [2003]). In addition, those affidavits indicate that theplaintiff was not shut out of the decedent's life (cf. Matter of Delyanis, 252 AD2d585, 586 [1998]), and the decedent was aware of the natural objects of her bounty.
The plaintiff's remaining contentions either are without merit or need not beaddressed in light of our determination. Rivera, J.P., Leventhal, Hinds-Radix andMaltese, JJ., concur.