Papers considered:1. Verified Petition of Aviva Aviv Steinberg, Yuval Eilam, Ofer Eilam and Ehud Eilam filed May 18, 20182. Attorney Affirmation of Donald L. Rosenthal, Esq. and Jamine Chean, Esq. filed September 28, 20183. Notice of Motion and Affirmation in Support thereof by Michelle S. Stein, Esq. filed November 1, 20184. Affirmation in Opposition to Respondent’s Motion to Dismiss by Donald L. Rosenthal, Esq. and Jasmine Chean, Esq. filed December 7, 20185. Affirmation in Opposition to Respondent’s Motion to Dismiss by Aviva Aviv Steinberg filed December 7, 20186. Memorandum of Law of Petitioners in Opposition to Respondent’s Motion to Dismiss the Verified Petition by Donald L. Rosenthal, Esq. and Jasmine Chean, Esq. filed December 7, 20187. Affirmation in Reply by Michelle S. Stein, Esq. filed on January 17, 2019DECISION/ORDER This is a decision on a pre-answer motion to dismiss. The motion is made to defeat a petition to determine the rights of claimants against the Estate of David Barnett (a/k/a Yehuda Steinberg; a/k/a Jay Steinberg). The decedent’s last will and testament left his entire estate to a friend, Ronald Minner. The estate is valued at approximately $25,000,000 and consists almost entirely of residential properties in Brooklyn, which decedent purchased, leased and managed over several decades prior to his death. Letters testamentary were issued to the nominated executor Scott Eisenmesser (hereinafter, the “respondent”) on March 22, 2017.The petitioners are decedent’s sister (his sole distributee) and her three sons (collectively, the “claimants”). Their claims against the estate relate to eight (8) or more properties located in Brooklyn. Each of the properties at issue was acquired by the decedent individually and then, as part of his ongoing gift and estate planning, re-titled to add his sister and/or one of his nephews as a joint tenant with rights of survivorship. The decedent continued to manage and rent the properties after the gifts. Later, largely unbeknownst to the claimants, the decedent transferred the properties back to himself or to limited liability companies in which he owned an interest. The claimants learned that decedent had divested them of title only after his death.In assessing the respondent’s motion to dismiss, the Court applies “the familiar pro-pleader rules of decision.” The proffered facts are therefore accepted as true and the petition is afforded a liberal construction and the benefit of every favorable inference (John R. Higgett, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C 3211:10 [2016 ed]). The Court therefore accepts as true claimants’ assertions regarding decedents’ promises and other statements for purposes of determining this motion.This proceeding relates to interests in the following properties:3906 Avenue K: Using a 1981 power of attorney by Aviva (hereinafter “Aviva’s POA”) decedent transferred title (jointly held with Aviva) to 3906 Ave. K Realty, LLC a company in which he was a manager and member in May 2007; a follow-up “confirmatory deed” in 2015 allegedly forged Aviva’s signature.1 The property then sold on March 25, 2015 to 3906 ARM Realty LLC for $2,000,000, an amount which was substantially less than the property’s true value.566 Seventh Street: In May 2007, Decedent used Aviva’s POA to transfer the property (jointly owned with Aviva) to 566 7th Street Realty, LLC, an entity in which decedent was a manager and member.2241 East 29th Street and 847 East 19th Street: Belle Steinberg, decedent’s and Aviva’s mother, died intestate in 1994. At her death, her interest in these Brooklyn properties passed to decedent. Decedent and Aviva purportedly agreed that they would share ownership in the Brooklyn properties and a property located on Allesi Street in Jerusalem; decedent would have the Brooklyn properties deeded to him and Aviva as joint tenants with rights of survivorship and in return, Aviva was to create a corresponding interest in the Jerusalem property. Aviva had the Jerusalem property transferred to herself and the decedent jointly as agreed, but instead of adding Aviva to the deeds to the Brooklyn properties, the decedent deeded them to limited liability companies in which he had an ownership interest and Aviva had no interest.2031 Ocean Avenue: This property was jointly owned with Ofer. Ofer’s power of attorney, executed in 1990, appointed Aviva and decedent as his agents (hereinafter “Ofer’s POA”). Seeking to refinance the property in 1991, decedent represented to Aviva and Ofer that the process would be simplified if he (decedent) was the sole owner of the Ocean Avenue building. He promised to deed the property back to Ofer after obtaining a mortgage loan. Acting under Ofer’s POA — an instrument which also appointed decedent as an agent — Aviva transferred Ofer’s interest in the Ocean Avenue property to her co-agent, the decedent. In September 2004, after the refinancing had closed, ownership was transferred to YS 2233 & 2031 Realty, LLC, an entity in which decedent had an ownership interest. In 2014, the Ocean Avenue property was sold to three third-party limited liability companies for $2,400,000, an amount which was substantially less than its true value.41 Wyckoff Street: In July 1986, defendant deeded a joint tenancy with right of survivorship to Yuval. Decedent remitted no share of the net proceeds of rents or profits to Yuval during his lifetime. No rents have been collected by the executor.45 Wyckoff Street: In July 1986, defendant deeded a joint tenancy with right of survivorship to Ehud. Decedent remitted no share of the net proceeds of rents or profits to Ehud during his lifetime. No rents have been collected by the executor.Ehud LLC, Ofer LLC and Yuval 125 LLC (collectively, the “LLC’s”): Decedent formed the three single-member LLC’s in 2004. Each owns 2 condominium units in 125 8th Avenue after transfers from decedent in January 2005. Decedent’s nephews claim that decedent may have granted some unknown interest in each LLC to them, which they believe he created as part of his lifetime gifting plan.Claimants put forward seven causes of action. Their first cause of action is for breach of fiduciary duty, based on decedent’s position of trust under Aviva’s POA and Ofer’s POA and his joint tenancies with the claimants. As to the Avenue K and Seventh Street properties, a further claim sounding in fraud is based on the decedent’s use of Aviva’s POA to transfer title. The second cause of action is for imposition of a constructive trust on the proceeds of the decedent’s 2014 sale of 2031 Ocean Avenue. The third cause of action under RPAPL §1201 is to recover Ehud and Yuval’s share of rents collected for 41 Wyckoff and 45 Wyckoff, respectively. The fourth cause of action is for an accounting of all monies and properties of the claimants acquired or received by the decedent. The fifth cause of action arises under SCPA §2105 and seeks to compel the executor to turn over to the claimants the properties at issue or proceeds of their sale. As a sixth cause of action, claimants seek relief under SCPA §2102(1) compelling the executor to provide corporate records and other information regarding the LLC’s. Claimants’ seventh cause of action lies in promissory estoppel and arises from Aviva’s conveyance of a joint tenancy in the Jerusalem property to decedent in reliance on his oral representation that he would add her as a joint tenant to East 29th Street and East 19th Street properties.Respondent first moves to dismiss under CPLR §3211(a)(5), arguing that the action for breach of decedent’s fiduciary duties is time-barred by the three-year statute of limitations established under CPLR §214(4). Conceding that decedent’s transfers of the Avenue K and Seventh Avenue properties were “wrongful”, respondent argues that the present proceeding is barred because decedent’s conveyances terminated his fiduciary relationship with claimants and triggered the applicable statute of limitations. Respondent argues that the act of recording the deeds affecting these transfers (the most recent of which took place in May 2007) terminated the fiduciary relationship by “open repudiation.” In a subsequent reply affidavit to motion, respondents assert that dismissal of the first cause of action under CPLR §3211(a)(7) is required as to the Avenue K and Seventh Avenue properties because the claims sounding in fraud are not pled with particularity, as required under CPLR §3016(b).Respondent relies on the six-year statute of limitations of CPLR §213(8) to raise a bar to petitioner’s second cause of action for imposition of a constructive trust on the proceeds of the decedent’s 1991 sale of the Ocean Avenue property. The third cause of action pursuant to RPAPL §1201 for an accounting of rents collected by decedent for the two Wyckoff Avenue properties, respondent argues, may not be demanded for rents prior to October 1, 2012 because of the six-year statute of limitations. Respondent alleges that claimants lack standing under CPLR §3211(a)(3) to compel the accounting sought in their fourth cause of action. Dismissal of claimants’ fifth cause of action for relief under SCPA §2105 is warranted, according to respondent, because the claimants are not presently unconditionally entitled to transfer of title. Respondent avers that claimants’ sixth cause of action for relief under SCPA §2102(1) is barred because respondent has provided prima facie CPLR §3211(a)(1) “documentary evidence”, in the form of decedent’s tax return, which conclusively refutes the claimants’ allegations. The six-year statute of limitations of CPLR §213(1) is also cited as barring the seventh cause of action for promissory estoppel with respect to the properties at East 29th Street and East 19th Street in which Belle Steinberg formerly had an interest. Last, respondent asserts that the seventh cause of action is also barred by the statute of frauds under GOL §5-703.Fiduciary RelationshipDecedent assumed fiduciary duties to the claimants by the terms of the Aviva POA and the Ofer POA, and when he gifted joint tenancies to them (see, eg, Snyder v. Puente De Brooklyn Realty Corp., 297 AD2d 432, 435-436 [3d Dept 2002]). It is axiomatic that any fiduciary “must act in the utmost good faith and undivided loyalty toward the principal and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing” (Matter of Ferrara, 7 NY3d 244, 254 [2006], citing Semmler v. Naples, 166 AD2d 751, 752 [3d Dept 1990]). The facts establish that the claimants had a close relationship with decedent, including assisting him in his business. The trust they reposed in him lead them to forego the vigilance they would have brought to dealings with a stranger (Estate of Hersh, 2018 NYLJ LEXIS 4352, *38 [Sur Ct Queens Cty 2019]). The Court finds that the decedent was in a fiduciary relationship with each of the claimants by virtue of the powers of attorney and/or as a result of joint ownership of the properties at issue.StandingRespondent asserts that the claimants lack standing to demand an accounting of him in his capacity as executor, and that therefore claimants’ fourth cause of action must be dismissed under CPLR §3211(a)(3). Respondent mischaracterizes the cause of action, however, because the accounting demanded relates to the conduct of the decedent as fiduciary. Claimants’ standing is thus not derived from the laws of intestacy or probate: they have standing to demand an accounting because decedent made himself their fiduciary. Respondent thus has a duty in his capacity as “fiduciary of a fiduciary” (SCPA §2207) to account to claimants.Respondent again cites standing to support dismissal of claimants’ third cause of action for an accounting of the rents collected for the Wyckoff properties. The Court finds that claimants have standing as joint tenants to demand an accounting of decedent’s activities as their fiduciary. Again, the respondent’s duty to account extends to claimants, to whom he must account as a fiduciary of decedent, himself a fiduciary to claimants. Respondent’s motion to dismiss claimants’ third and fourth causes of action on the basis of standing is therefore dismissed.The Court rejects Respondent’s application to limit claimants’ accounting for rents to the six-year period prior to decedent’s death. Claims for breach of fiduciary duty relate back to the inception of the fiduciary relationship — in this case, to the deeds that decedent used to create joint tenancies with his nephews three decades ago (New York State Workers’ Compensation Bd. v. Consolidated Risk Services, Inc., 125 AD3d 1250, 1252 [3d Dept 2015]).Statute of LimitationsRespondent’s success on its motion to dismiss under CPLR §3211(a)(5) is dependent on its prima facie showing that the cause of action for breach of fiduciary duty is time-barred by the applicable statute of limitations (Krog Corp. v. Vanner Group, Inc., 158 AD3d 914 [3d Dept 2019]). As part of its case, respondent must establish both when claimants’ causes of action accrued and when the time within which to commence the action expired (Krog Corp., 158 AD3d at 915). Respondent’s motion to dismiss claimants’ fourth cause of action on the basis of standing is denied.When a breach of fiduciary duty is alleged, New York’s “repudiation rule” is invoked to determine the date a cause of action first accrues (New York State Workers’ Compensation Bd. v. Consolidated Risk Services, Inc., 125 AD3d 1250, 1252 [3d Dept 2015]). That rule provides that a cause of action for breach of fiduciary duty accrues — and the statute of limitations is triggered — only when the relationship is terminated by an accounting or death of the fiduciary or when there is an “open repudiation” of the fiduciary relationship (Matter of Barabash, 31 NY2d 80 [1972]). The same principal applies to joint tenant/fiduciaries, in that the statute of limitations on an accounting of rent under RPAPL §1201 collected is tolled until an outster of the joint tenant is accomplished by “unmistakable repudiation of the co-tenancy, which may take the form of an express communication or may be accomplished by “acts…so openly hostile” that the non-possessing co-tenants can be presumed to know that their rights are in jeopardy (Bank of America, NA v. 414 Midland Ave. Assoc., LLC, 78 AD3d 746 [2d Dept 2010], Rosen v. Rosen, 78 AD2d 911, 912 [3d Dept 1980]).Respondent argues that when decedent recorded the deeds conveying jointly-owned property back to himself, he openly repudiated his fiduciary duties. Each such deed would thus mark both the date of decedent’s repudiation and the accrual of claimants’ causes of action. If this Court adopts that view, virtually all of claimants’ causes of action must be dismissed, as the lion’s share of the disputed acts took place more than six (6) years before the present petition was filed.Conduct will be deemed to be an “open repudiation” which terminates the fiduciary relationship only if it is “clear” and “made known” to the aggrieved parties (Matter of Barabash, 31 NY2d at 82). In Barabash, the Court held that the issuance of letters of administration erroneously identifying the fiduciary as the sole distributee was insufficient to constitute open repudiation of his duties to others entitled to inherit (Matter of Barabash at 80).Letters of administration and recorded instruments like the deeds in question here are indisputably public documents, but the Court is unpersuaded that the mere recording of a deed — without more — satisfies the Barabash requirements for open repudiation which is “made known” to claimants. It is unreasonable to expect the claimants to periodically assure themselves over a span of thirty years of the state of title of their joint holdings. In Surrogate Holzman’s words, “the law does not burden an innocent co-tenant with undertaking such diligence to thwart the chicanery of a co-tenant” (Estate of Nazarro, 7 Misc 3d 1001(A) [Sur Ct Bx Cty 2005]). For this reason claimants’ “failure to conduct due diligence” is not the basis for an equitable estoppel or claim of laches. Their inaction is a direct measure of the extent of their confidence in the fiduciary relationship created by a family member for their benefit.Decedent’s acts during his lifetime did not terminate or openly repudiate his fiduciary duties as joint tenant or as agent under the Aviva POA and the Ofer POA. The Court finds that the decedent’s fiduciary relationships were terminated only upon his death on January 10, 2017 (Estate of Frances McNamara, 2003 NYLJ LEXIS 1811 [Sur Ct Westchester Cty 2003]). Since the repudiation rule acts as a toll of the limitations period for all misconduct of the fiduciary prior to repudiation, claimants’ causes of action for breach of fiduciary duties extend back to the inception of those duties in the powers of attorney and deeds creating joint tenancies (New York State Workers’ Compensation Bd. v. Consolidated Risk Services, Inc., 125 AD3d 1250, 1252 [3d Dept 2015]).As to the cause of action for constructive trust, a principal analogous to the repudiation rule guides the time of accrual on actions for constructive trust, which arise when the alleged constructive trustee “wrongfully withholds property lawfully acquired from the complainant” (Zane v. Minion, 63 AD3d 1151, 1153 [2d Dept 2009]). The six-year statute of limitations thus begins to run from the date of repudiation or breach of decedent’s agreement to return title to the property to the complainant. With respect to the Ocean Avenue property, the 2014 sale to a third party was the triggering event for imposition of a constructive trust, because with that sale, decedent rendered it impossible to return the title to Ofer, repudiating his promise to re-convey.This proceeding is not time-barred under CPLR §213(1) or (4) because it was timely commenced on May 17, 2018 — little more than a year after decedent’s death and termination of his status as fiduciary. Respondent’s motion to dismiss on the basis of the affirmative defense of the statute of limitations is therefore denied.Failure to State A ClaimOn a motion to dismiss pursuant to CPLR §3211(a)(7), the pleadings under review are to be afforded a liberal construction (Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351 [2013]). The claimants’ pleadings need only be facially sufficient and support a legally-cognizable theory of recovery; whether claimants may ultimately prove their allegations is not part of the calculus in determining a motion to dismiss (EBCI, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).The claimants have pled sufficient factual allegations to state claims for constructive trust, accounting, SCPA Article 21 discovery and promissory estoppel. Respondent’s motion to dismiss the second through seventh causes of action under CPLR §3211(a)(7) is therefore denied.FraudRespondent contends that claimants’ allegations of fraud with respect to the Avenue K and Seventh Avenue properties must be dismissed because the elements of fraud are not pled with sufficient specificity, as required by CPLR §3016(b). It is correctly pointed out that the term “fraud” was not used in claimants’ petition and was first employed in their attorneys’ memorandum of law. But if the Court looks to the “reality…and essence” of the pleading and not “its mere name,” it becomes clear the breach of fiduciary duty was founded in decedent’s fraudulent use of the Aviva POA, which is a matter of public record (Paolucci v. Mauro, 74 AD3d 1517, 1520 [3d Dept 2010]). Any factual deficiency in the pleadings arise from material facts exclusively in the possession of respondent and may therefore be cured later in the proceedings (Paolucci v. Mauro, 74 AD3d 1521 [3d Dept 2010]).The decedent’s disputed acts are memorialized in the recorded deeds and Aviva POA, the very instrumentalities by which he perpetrated the alleged fraud. The dates and details of those documents cited in the petition provide all the specificity required in that they clearly inform the respondent as to the conduct complained of (Fort Ann Cent. Sch. Dist. v. Hogan, 206 AD2d 723, 724 [3d Dept 1994]).Claimants’ causes of action make out a prima facie claim of fraud based on the unauthorized transfers of the Avenue K and Seventh Street properties (Paolucci v. Mauro, 74 AD3d at 1520 [3rd Dept 2010]). Respondent’s motion to dismiss claimants’ cause of action for fraud is therefore denied.SCPA Article 2105Relying on In re Estate of Virginia, 124 AD3d 1348 [4th Dept 2015], respondent argues that claimants have not met the burden of establishing that they are “unquestionably and unconditionally entitled to the immediate transfer” of the property interests they seek under SCPA §2105. This is the standard claimants must meet at trial. At this early stage of the proceedings, claimants’ burden is considerably lessened and its allegations are sufficient to support their claim for relief under SCPA §2105. Respondent’s motion to dismiss claimants’ fifth cause of action is denied.Respondent notes, correctly, that title to the Wyckoff properties was conveyed to Yuval and Ehud by operation of law and therefore cannot be transferred to them by the respondent as executor.Documentary EvidenceRespondent cites CPLR §3211(a)(1) and “documentary evidence” as grounds to dismiss the sixth cause of action regarding title to the LLC’s. The evidence cited by respondent is decedent’s individual tax returns which reference his sole ownership of the LLC. Dismissal of this proceeding on the basis of CPLR §3211(a)(1) will be justified only if the proffered evidence is “unambiguous, authentic and undeniable” (Gulfstream Anesthesia Consultants, PA v. Cortland Regional Medical Ctr., 165 AD3d 1430, 1433 [3d Dept 2018]) and “conclusively establishes a defense to the asserted claims as a matter of law.” (New York State Workers’ Compensation Bd. v. Consolidated Risk Services, Inc., 125 AD3d [1256]).The decedent’s tax returns do not “utterly refute” claimants’ allegations. The decedent’s demonstrated practice of gifting interests in real estate to his nephews make it possible that he acquired these properties with his nephews in mind. In this respect the decedent’s choice of names for the LLCs are probative. Giving claimants the benefit of every inference in this proceeding (EBCI, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]), claimants Yuval Eilam, Ofer Eilam and Ehud Eilam have adequately stated a basis in law for the remedy they seek under SCPA §2102. Respondent’s motion to dismiss on the basis of documentary evidence is denied.Dead Man’s StatuteThe Dead Man’s Statute (CPLR §4519) is a rule of evidence that renders certain witnesses incompetent to offer testimony to prove financial transactions with the decedent. It prohibits such testimony only at trial or at a hearing on the merits of a special proceeding (Phillips v. Joseph Kantor & Co., 31 NY2d 307, 313 [1972]). It does not bar such evidence in pre-trial proceedings such as these. Respondent’s motion to dismiss claimants’ second (constructive trust) and seventh causes of action (promissory estoppel) on this basis is denied.Statute of FraudsRespondent cites GOL §5-703, the codification of the common law statute of frauds, as a bar to claimants’ seventh cause of action to enforce decedent’s promise to share with Aviva title in their Brooklyn property formerly owned by their mother, Bella Steinberg. The promises exchanged were indeed oral and so the underlying agreement is not enforceable as a contract. But the exchange of promises, claimants’ reliance and breach on decedent’s part may support a claim for promissory estoppel, an equitable exception to the statute of frauds (Restatement [Second] of Contracts, §139[1]). The promises here would fail under such an exception only if Aviva would suffer an unconscionable injury if they are not enforced (Matter of Hennel, 29 NY3d 487, 493 [2017]). Here, in reasonable and justifiable reliance on decedent’s representations, Aviva added his name to the Jerusalem property, to her detriment. She incurred further injury in the cost of significant capital improvements she made to the property (Matter of Hennel, 29 NY3d 494; see also Fleet Bank v. Pine Knoll Corp. 290 AD2d 792 [3d Dept 2002]). To bar enforcement of decedent’s promise in the face of Aviva’s detrimental reliance and injury would “shock the conscience and confound the judgment of any person of common sense” (Christian v. Christian, 42 NY2d 63, 71 [1977]), citing Mandel v. Liebman, 303 NY88 [1951]). Claimant’s have stated a valid claim for promissory estoppel. Respondent’s motion to dismiss on the basis of GOL §5-703 is denied.The Court has examined respondent’s remaining contentions and finds them lacking in merit.The Court hereby finds as follows:1.) The decedent was in a fiduciary relationship with the claimants.2.) The fiduciary relationship was terminated at decedent’s death on January 10, 2017.3.) This proceeding was timely commenced and adequately pleaded causes of action in fraud, breach of fiduciary duty, accounting, constructive trust and promissory estoppel.The instant motion to dismiss is denied.ORDERED, ADJUDGED and DECREED respondent’s motion to dismiss is denied. Respondent is directed to efile his answer to the claimants’ petition within 30 days of the date hereof.This constitutes the decision of the Court. All papers, including this Decision, are hereby entered and filed with the Clerk of the Surrogate’s Court. Counsel is not relieved from the applicable provisions of CPLR Section 2220 relating to service and notice of entry.Dated: April 16, 2019
