Kanakos v Kostakos

[*1] Kanakos v Kostakos 2012 NY Slip Op 50504(U) Decided on March 20, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 20, 2012
Supreme Court, Queens County

Helen Kanakos

against

Nikolaos Kostakos



19589/2011



For the Plaintiff: King & Streisfeld, by Jeffrey D. Streisfeld, Esq., 3000 Marcus Avenue, Lake Success, New York 11042

For the Defendant: Coritsidis, Sotirakis & Saketos, P.L.L.C., by Antonia T. Costantinou, Esq., 25-61 Steinway Street, Astoria, New York 11103

Charles J. Markey, J.

Notice of Motion - Affidavits - Exhibits........................................................................ 1-5

Answering Affidavits - Exhibits.................................................................................... 6-8

Reply Affidavits........................................................................................................... 9-10

The plaintiff Helen Kanakos commenced this action against her uncle defendant Nikolaos Kostakos, to assert an interest in the premises, or proceeds from the sale of the premises, located at 13-35 135th Street in College Point, in Queens County, New York. The premises was once owned by her uncle John Kostakos, who is also the defendant's brother, whereupon the defendant conveyed title to the premises to himself, pursuant to a power of attorney on June 14, 1999. On June 16, 2004, the defendant sold the subject premises for $415,000.00. John Kostakos died in December 2009, while a resident of a nursing home.

The plaintiff Helen Kanakos alleges that, at various times ,she was advised by several individuals, including John Kostakos, that she would inherit the subject premises from him upon his death. The plaintiff Helen Kanakos claims that, although title to John Kostakos's premises was transferred to the defendant in 1999, she did not learn of the transfer until after John Kostakos' death. The plaintiff Helen Kanakos claims that the defendant retained the [*2]proceeds from the sale of the premises and failed to account for the use of the proceeds to either John Kostakos or his heirs. The plaintiff also alleges that, upon information and belief, John Kostakos had executed a will in which she was named as a beneficiary to inherit the entire premises.

As a result of the foregoing, the plaintiff asserts five causes of action alleging that:

(1) she is "entitled to her Intestate Statutory Share of the Estate of John Kostakos, including the proceeds of the sale";

(2) she is "entitled to her probate share of the premises . . . as the 100% Named Beneficiary of said subject premises";

(3) the defendant converted the proceeds from the sale of the subject premises to his own name in violation of the rights of John Kostakos and his heirs, including her;

(4) the defendant breached his fiduciary duty to John Kostakos as a consequence of the foregoing conduct; and

(5) she is entitled to an award of punitive damages against the defendant.

The defendant moves to dismiss the complaint against him, pursuant to CPLR 3211 (a)(1),(3),(5)and(7), respectively, on the grounds that a defense is founded upon documentary evidence; the plaintiff does not have legal capacity to sue; the claims are barred by the statute of limitations; and the complaint fails to state a cause of action.

The plaintiff's first, second, third and fourth causes of action are, in essence, claims to recover estate assets. It is well-settled law that a plaintiff, who alleges in her individual capacity that she is either a legatee, beneficiary, or distributee of assets from the estate of John Kostakos, has "no independent cause of action either in [her] own right or in the right of the estate [to recover estate assets]" (McQuaide v Perot, 223 NY 75 [1918]; see, Jackson v Kessner, 206 AD2d 123 [1st Dept. 1994], lv. to appeal dismissed, 85 NY2d 967 [1995]). Such claims may be maintained solely by the estate's representative (see, Gaentner v Benkovich 18 AD3d 424 [2nd Dept. 2005]). Thus, since these claims are brought by the plaintiff in an individual capacity, she lacks legal capacity to maintain them. the plaintiff's first, second, third, and fourth causes of action are , accordingly, dismissed, pursuant to CPLR 3211(a)(3).

The fifth cause of action for punitive damages is hereby dismissed for failure to state a cause of action, pursuant to CPLR 3211(a)(7), because "a demand for punitive damages may not constitute a separate cause of action for pleading purposes" (Rimany v. Town of [*3]Dover, 72 AD3d 918, 923 [2nd Dept. 2010], lv. to appeal denied, 15 NY3d 705 [2010], quoting Rosenblum v. Frankl, 57 AD3d 960 [2nd Dept. 2008]).

Upon the foregoing papers, the plaintiff's papers are inadequate to withstand

dismissal. The complaint is, therefore, dismissed in its entirety.

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: March 20, 2012