DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, it is hereby ORDERED that the action is dismissed Procedural History Plaintiff Jennifer Ianni, as the Administrator of the Estate of Frank Ianni, commenced these proceedings against the Defendants Anthony Reitano (the cousin of the deceased) and Anthony Ianni (the brother of the deceased) with the filing of a Summons and Complaint on September 25, 2020. The Complaint alleges legal malpractice against Defendant Anthony Reitano, slander of title against Defendants Anthony Reitano and Anthony Ianni, conversion and seeks a declaratory judgment against Defendant Anthony Ianni. In the Complaint, Plaintiff Jennifer Ianni, contends that the deceased, after having a stroke, entered into an attorney-client relationship with Defendant Anthony Reitano and he is purported to have transferred the deceased’s business and real estate interests to the Defendant, Anthony Ianni without consideration. Plaintiff alleges that the contracts and deeds signed before the decedent’s death are forgeries. The instant motion to dismiss pursuant to CPLR 3211(a)(3) was filed on January 27, 2021. Defendants’ Motion to Dismiss Defendants currently move this Court to dismiss this Action pursuant to CPLR 3211(a)(3) for lack of standing and transfer any surviving claims to Richmond County Surrogate’s Court. The parties in this matter are currently also parties to the discovery proceeding pending in Richmond County Surrogate’s Court, entitled “IN THE MATTER OF THE APPLICATION OF JENNIFER IANNI AS ADMINISTRATOR TO DISCOVERY PROPERTY WITHHELD IN THE ESTATE OF FRANK IANNI” and docketed as 2018-475/A. Plaintiff’s letters grant Jennifer Ianni only a narrow scope of authority to act on behalf of the estate and specifically state, “Said letters limit the powers of the administrator to commence a discovery proceeding pursuant to SCPA2103.” Plaintiff’s Opposition to the Motion to Dismiss Plaintiff argues in opposition that the Supreme Court is the proper venue for this action, in that, she is seeking damages for legal malpractice and conversion, which are separate and distinct from the action in Surrogates Court. Further, Plaintiff requests in her opposition that the Court deem the Complaint amended to name Jennifer Ianni as Plaintiff in her individual capacity. Discussion Under CPLR 3211(a)(3), “a party may move for judgment dismissing one or more causes of action asserted against him on the ground that: the party asserting the cause of action has no legal capacity to sue.” Dismissal pursuant to CPLR 3211(a)(3) for lack of standing is appropriate as the Plaintiff has not produced appropriate letters of administration necessary to establish her capacity to sue. Kleynerman v. MJGC Home Care, 153 A.D.3d 1246 [2d Dept. 2017]; Palladino v. Metro Life Ins. Co. 188 AD2d 708 [3d Dept. 1992]. It is undisputed that the Plaintiff Jennifer Ianni received limited letters granting her only a narrow scope of authority to commence a “discovery proceeding.” All actions in this matter were asserted on behalf of the Estate of Frank Ianni by Jennifer Ianni. Jennifer Ianni does not appear in any individual capacity, other than as the purported administrator of the estate. It should be noted that Plaintiff has not moved for leave to amend the Complaint in this Action and has not submitted a proposed amendment, per CPLR 3205(b). This Court will not sua sponte deem the Complaint amended. Even if the Court were to consider the Causes of Action in the Complaint amended and brought by Jennifer Ianni, in an individual capacity, they would still require dismissal. The First Cause of Action sounds in legal malpractice. Jennifer Ianni, in her individual capacity, did not have standing to bring a legal malpractice claim against Defendant Anthony Reitano. A claim for legal malpractice requires privity of contract. See Good Old Days Tavern v. Zwirn, 259 AD2d 300 [1st Dept. 1999]. Jennifer Ianni does not purport to have had an attorney-client relationship with Defendant Reitano. The Second Cause of Action sounds in Slander of Title. This Cause of Action has a one-year statute of limitations. See CPLR 215(3). Jennifer Ianni, in her individual capacity, did not have any title interest in the subject real property, and therefore lacks standing to bring the action. See White & Baxter, Inc. v. Jade Sq. & Tower, Ltd., 62 AD2d 963 [1st Dept. 1978]. The Third Cause of Action seeks a declaratory judgment pursuant to CPLR 3011. CPLR 3011 requires “that the plaintiffs in such an action have an interest sufficient to constitute standing to maintain the action.” See Tomasulo v. Vil. Of Freeport, 151 AD3d 1100 [2d Dept. 2017]. Again, Jennifer Ianni does not purport to have an individual interest in the subject real property, and therefore lacks standing. The Fourth Cause of Action sounds in conversion. A conversion “takes place when someone intentionally, and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession.” See C&B Enterprises USA LLC v. Koegel, 136 AD3d 957 [2d Dept. 2016]. Jennifer Ianni has not demonstrated that she has a possessory right or interest in her personal capacity in Frank Ianni’s business or real property. In light of the foregoing, the Court finds based upon the limited letters issued, that Jennifer Ianni lacks standing to bring this action on behalf of the Estate of Frank Ianni. As no claims survive this dismissal for lack of standing, there shall be no transfer to the Surrogate’s Court. Accordingly, it is hereby ORDERED that Defendant’s Motion to Dismiss is hereby granted pursuant to CPLR 3211(a)(3). Dated: March 22, 2021
