ESTATE OF ROBERT L. SCOTT, ET AL. (33035/2020) — This action asserts various claims sounding in fraud against, among others, the estate’s preliminary executor and a beneficiary under a purported will being offered for probate in a separate estate proceeding. Originally brought in the Supreme Court, Bronx County, the action was subsequently transferred to this court pursuant to CPLR 325 (e). Two of the defendants, Kim Wade (“Kim”) and Robert Wade (“Robert”), now move for an order: (i) dismissing the amended complaint under various provisions of CPLR 3211(a) and (ii) canceling a notice of pendency recorded against the estate’s real property located at 942 East 220th Street, Bronx, New York. In opposition, the plaintiffs cross-move for an order granting leave to file an amended complaint and denying the defendants’ motion. BACKGROUND The decedent, Robert Scott, died on January 30, 2020, allegedly leaving a Last Will and Testament dated December 21, 2019 (the “Will”). Ostensibly, the Will bears the decedent’s signature, was drafted by an attorney who also supervised its execution, and contains an attestation clause signed by two witnesses. Those witnesses also executed affidavits pursuant to SCPA 1406 which state, inter alia, that the decedent appeared to be of sound mind and free from restraint when he executed the Will. The decedent’s estate consists primarily of real property located at 942 East 220th Street, Bronx, New York (the “Realty”), which is encumbered by a substantial mortgage. The Will bequeaths the decedent’s entire estate in equal shares to defendants Kim and Erroll Holloway (“Erroll”), who are the decedent’s step-children. Kim is the Will’s nominated executor. On June 23, 2020, she filed a petition seeking a decree admitting the Will to probate and awarding her letters testamentary (the “Probate Proceeding,” File No. 2020-506/B). By an order dated July 31, 2020, the court issued preliminary letters testamentary to Kim. Those letters, which contain SCPA 805(3) restrictions preventing the sale of the Realty without the court’s permission, were extended for an additional six months by an order dated October 19, 2022. As set forth in the probate petition, the decedent was survived by five distributees: Lorri Scott (“Lorri”), Robin Scott (“Robin”), Elaine Scott-Morton (“Elaine”), Ayanna J. Lee (“Ayanna”) and Sierra N.L. (“Sierra”). Lorri, Robin and Elaine, the plaintiffs herein, are the decedent’s biological daughters. Ayanna and Sierra are the issue of the decedent’s predeceased daughter. As Sierra is an infant, the court appointed a guardian ad litem to protect her interests in the Probate Proceeding. All of the other distributees have appeared in the Probate Proceeding and are represented by counsel. On November 3, 2020, the plaintiffs commenced the instant action (the “Supreme Court Action”) against Kim, Robert (who is Kim’s son) and Errol in the Bronx County Supreme Court. Kim and Robert have appeared through counsel. To date, Errol has not been served with process or appeared in the Supreme Court Action. In conjunction with the Supreme Court Action, the plaintiffs recorded a notice of pendency in the Bronx County Clerk’s office against the Realty. Shortly thereafter, Lorri and Robin filed objections to the Will in the Probate Proceeding alleging, inter alia, that it was the product of fraud, undue influence and a lack of capacity. Consequently, the court issued an SCPA 1411 citation that was served upon Errol, completing jurisdiction in the Probate Proceeding. Errol did not appear on return date of the SCPA 1411 citation, nor has he opposed the relief sought by Kim in the Probate Proceeding to date.
By an order to show cause in the Supreme Court Action dated December 9, 2020, Kim and Robert moved to have the case transferred to the Bronx Surrogate’s Court pursuant to CPLR 325 (e). On January 20, 2021, the Honorable Wilma Guzman issued a Decision and Order: (i) removing the Supreme Court Action and its appurtenant notice of pendency to the Bronx County Surrogate’s Court, and (ii) staying all proceedings in the Supreme Court Action, subject to the further order of the Bronx County Surrogate. On July 21, 2022, this court rendered an order from the bench lifting the stay. The parties in the Probate Proceeding are currently conducting discovery. By a written stipulation in the Supreme Court Action dated August 4, 2022, the parties agreed to a briefing schedule for the defendants to file a pre-answer motion to dismiss. The instant motion to dismiss and cross-motion by the plaintiffs were filed in accordance with that stipulation, wherein it was agreed that they would be marked “submitted” on October 13, 2022. On the submission date, a member of the court’s Law Department met with counsel for the parties in the Supreme Court Action to discuss the motion and cross-motion. During this conference, there were no requests by either counsel to file further papers nor did they voice any objections to the matter being marked submitted for a decision. Additionally, both attorneys stipulated to dismissing all claims against Errol in the Supreme Court Action, without prejudice. DISCUSSION The Motion To Dismiss Initially, the defendants moved to dismiss the original complaint on multiple grounds under CPLR 3211 (a). With their cross-motion, however, the plaintiffs submitted a proposed amended complaint and requested leave to file it pursuant to CPLR 3025 (a) and (b). In reply, the defendants asked the court to apply their dismissal motion to the amended complaint if such leave was granted.
