The following electronically filed documents read on this motion by defendant SHELOMO LEVY for an Order pursuant to CPLR 3211(a)(1),(5),(7), and (10) dismissing this action:Papers NumberedNotice of Motion-Affirmation-Memo. of Law-Exhibits EF 9-21Affirmation in Opposition-Memo. of Law-Exhibits EF 22-25Affirmation in Reply EF 27
*1 Plaintiff Miriam Levy (Miriam) commenced this action by filing a summons and complaint on October 23, 2017. The verified complaint alleges that defendant Shelomo Levy (Shelomo) has grossly mismanaged and continues to mismanage the Estate of David Levy (David), Miriam’s late husband, by losing undisclosed properties to real estate tax lien foreclosures, failing to manage and pay all requisite taxes, and failing to transfer the properties out of the name of the deceased David Levy to the Estate. Miriam seeks declaratory judgments regarding the extent, scope and effect of certain releases, indemnifications, stipulations, and the mortgage lien upon her property. By way of relevant background, David died testate on April 3, 1998. David’s Will, dated May 27, 1997, was offered for probate in the Queens County Surrogate’s Court by his brother Shelomo, the nominated executor and the trustee of a testamentary trust created thereunder. Miriam filed untimely objections to the probate of the Will, which were rejected. Shelomo was appointed as executor on June 1, 1999. The Will makes no provision for Miriam. As such, Miriam filed a Notice of Election on November 29, 1999. A Stipulation between Miriam, Shelomo, and Miriam’s children Tamar Levy (Bida) Ravid (Tamar) and Ronit Levy Getter (Ronit) was entered into in March 2000. Miriam was represented by counsel. The Stipulation provides, in relevant part, that one-half of the real property located at 63-98 Alderton Street, Kew Gardens, New York (the Alderton Property), which was wholly owned by David at the time of his death and was to pass either to the Trust or to his residuary estate, which does not include Miriam, was to be deeded one-half to Miriam and one-half to the Trust. Rather than seek judicial approval of the Stipulation, the parties entered into a Release and Indemnity Agreement and Undertaking Agreement (RIA).The RIA provided, in relevant part, that the Alderton Property was to be deeded one-half to Miriam and one-half to the Trust, to satisfy Miriam’s Right of Election; Miriam, Tamer and Ronit indemnified Shelomo from all claims or potential claims by each of them as well as the beneficiaries of the Trust, who are David and Miriam’s grandchildren, as to all matters with respect to the Estate and Trust; Miriam would grant a mortgage to Shelomo on the Alderton Property to secure her indemnification of Shelomo thereunder; Shelomo would decline his
