The following papers were considered in connection with this motion to dismiss: Papers Considered Numbered Notice of Motion to Dismiss, dated June 30, 2021, with Affirmation of Harvey E. Corn, Esq., dated June 30, 2021, Attaching Exhibits 1 through 9 1, 2 Memorandum of Law, dated June 30, 2021, in Support of Motion 3 Affirmation of Melissa Pena, Esq., dated July 23, 2021, in Opposition to Motion, Attaching Exhibits A through E 4 Memorandum of Law in Opposition to Motion to Dismiss, dated July 23, 2021 5 Reply Memorandum of Law, dated August 5, 2021, in Further Support of Motion 6 Reply Affirmation, dated August 5, 2021, of Harvey E. Corn, Esq., Attaching Exhibits 1 through 5 7 DECISION and ORDER At the call of the calendar on August 18, 2021, the court ordered a continuance of defendant’s motion to dismiss this action for a constructive trust. In his complaint, transferred to this court from Supreme Court (New York County), plaintiff Richard Karpf (“Karpf”) claims that his sister, defendant Robin Karpf Mitchell (“Mitchell”), made a promise to their father, decedent Joseph Karpf, to provide for Karpf as their father had done for years and that this promise was in exchange for testamentary bequests to Mitchell that excluded Karpf (see O’Boyle v. Brenner, 273 App Div 683 [1st Dept 1948]). The complaint asks that, as a remedy for Mitchell’s having broken such promise, the property bequeathed to Mitchell be subject to her obligation to make good on her promise (see Matter of Thomas, 124 AD3d 1235 [4th Dept 2015]; see also Matter of Radio Drama Network, Inc., 187 AD3d 526 [1st Dept 2020]). Although Karpf sought discovery under SCPA 1404 in the separate but related probate proceeding, ultimately, he did not contest the validity of decedent’s will, which was admitted to probate, subject to the parties’ stipulation reserving Karpf’s rights to other claims he may have against Mitchell.1 After transfer to this court, defendant pursued the motion to dismiss the complaint for failure to state a claim under CPLR 3211(a)(7), arguing that the alleged promise was too speculative and indefinite to be enforceable. However, in opposition, plaintiff demonstrated that the terms of the promise may be ascertained in discovery (CPLR 3211 [d]; see Nice v. Combustion Engineering, Inc., 193 AD2d 1088 [4th Dept 1993]; Decea v. Krueger, 2008 WL 8121281, No. 24664/2007 [Sup Ct, Westchester County, May 5, 2008]). Consequently, the court continued the motion and permitted the parties to conduct discovery (Cantor v. Levine, 115 AD2d 453 [2d Dept 1985]). Accordingly, the motion to dismiss was continued pursuant to CPLR 3211(d). Following a conference after the calendar, the parties agreed, and the court directs, as follows: the parties shall notice or demand all discovery no later than September 10, 2021, and all discovery shall conclude no later than November 5, 2021. Further submissions in support of the motion shall be filed and served no later than November 19, 2021; further submissions in opposition to the motion shall be filed and served no later than December 7, 2021; a succinct reply, if any, shall be filed and served no later than December 14, 2021. Oral arguments will thereafter be scheduled, in consultation with the parties. This decision, together with the transcript of the August 18, 2021 proceedings, constitutes the order of the court. Dated: September 9, 2021
