Bregman v Bregman

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Bregman v Bregman 2011 NY Slip Op 33723(U) October 17, 2011 Sup Ct, New York County Docket Number: 109817/2010 Judge: Richard F. Braun Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 10/19/2011 [* 1] ··.,i; I SUPREME COURT OF THE .STATE OF NEW YORK - ,NEW YORK QO~NTY ,...... PRESENT: . ;_ . ''; '' .-.~ PART .·.Q"-~ lfllCHMD'·IMuN ' ' J.8.C.. Index Number: 109817/2010 INDEX NO. BREGMAN, MARTIN MOTION DATE vs. BREGMAN, ELIZABETH I MOTION SEQ. NO. SEQUENCE NUMBER: 001 MOTION CAL. NO. DISMISS this motion to/for .....::d::.......L./?,_~.....:~~.~-'--PAPERS NUMBERED I Notice of Motion/,,Q1de1 to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits - - - - - - - - - - - - - z U'J Cross-Motion: a: Upon the foregoing pap ¢ ¢ ¢. 0 ~ CJ wz ut== ~ U'J ...I ::> ...I .., 0 0 u.. I- w 0 :c w .... a: a: a: 0 ~ w > Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - (ii LL D Yes ~ [/'1 No ;s mde ¢ed that this mot;o~~ ~ ~ A ~{i;i ~ ~AA-~~ CJ~~~ if~~ ~~ f ' ~~' ~~~AXJ~/rfA'. ~·,Ae~-~- a: > ...I ::> w {:,£,~?~~·· FILED OCT 19 2011 ...I LL .... u 0.. -~ ... .. 'l U'J w NEW YORK COUNTY CLERK'S OFFICE a: U'J w U'J <( Nrvio4AJtLL c ~ 1Yr14) _frv'fe._f-_'~------- z Dated: t== 0 Check one: u ~ 0 :; ~AL DISPOSITION Check if appropriate: 0 ~£~ 0 NON-FINAL DISPOSITION 0 DO NOT POST D REFERENCE SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 23 -----------------------------------------X Index No. 109817/2010 MARTIN BREGMAN, Plaintiff, OPINION -againstELIZABETH BREGMAN, a/k/a BETTY BREGMAN, Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X RICHARD F. BRAUN, J.: FILED OCl 19 2011 NEWYOHK 'S OFFICE couNTY CLE RK This is an action for damages and a declaratory judgment that a confession of judgment is void. The complaint alleges that through fraud or undue influence plaintiff was induced by defendant to give defendant a confession of judgment for 6 years ofarrears due defendant for maintenance and support under the parties' separation agreement. Defendant moves to dismiss contending that the complaint fails to state a cause of action for fraud or undue influence and that plaintiff is barred, pursuant to CPLR 3211 (a) (I), by waiver and judicial estoppel from contesting the validity of the confession of judgment based upon his failure to do so in various enforcement proceedings to date. Plaintiff counters that reading the allegations broadly he has made out a claim for fraud and undue influence sufficient to withstand a motion to dismiss and that waiver and estoppel are inapplicable. Alternatively, plaintiff seeks leave to re-plead. On a motion pursuant to CPLR 3211, a complaint must be liberally construed, the factual allegations therein must be accepted as true, the plaintiff must be given the benefit of all favorable inferences therefrom, and the court must decide only whether the facts alleged fall under any recognized legal theory (Sokolojf v IIarriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon 1 v Martinez, 84 NY2d 83, 87-88 [1994]; Molina v Phoenix Sound, 297 AD2d 595, 596 [l ' Dept [* 3] 2002]; Wiener v Lazard Fren~s & Co., 241 AD2d 114, 120 [ l ' 1 Dept I 998]). "The essential elements of a cause of action for fraud are 'representation of a material existing fact, falsity, scienter, deception and injury' "(New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [ 1995], quoting Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407 [1958]; accord Waggoner v Caruso, 68 AD3d 1, 6 [I st Dept 2009J, affd 14 NY3d 874 POlO]). Herc, defendant's allegation that "defendant represented that the sole purpose of signing the confession of judgment was to preserve plainti ff s property for her inheritance rights under the separation agreement and for the parties' children" fails to state such a claim. That the confession of judgment would preserve plaintiff's prope11y for the benefit of defendant's inheritance and for the parties' children is neither necessarily false nor was it a misrepresentation of a future intention (see Lanzi v Brooks, 43 NY2d 778, 779-780 [ 19771). The enfr1rcemcnt of a confession ofjudgment could certainly he! p assure that the plaintiff's assets would be available for defendant and the parties' children, and nothing in the alleged representation is sufficient to justify a reasonable reliance that the confession ofjudgment would not be executed upon. Moreover, insofar as the confession ofjudgment was for arrears under the parties' separation agreement, plaintiff can claim no damages from having confessed such a judgment as defendant would have been entitled to such a judgment in any event. Similarly, based upon these allegations, plaintiff fails to state a claim for undue influence (see Jn re Walther's Will, 6 NY2d 49, 53-54 [1959]; Gity!uk v Giryluk, 30 AD2d 22, 24 [1st Dept 1968], ajfd23 NY2d 894 fl 969] lno opinion]). Plaintiff has not alleged how, under the circumstances, his ex-wife was in a position to exert undue influence over him or how he was susceptible to same. Indeed, the allegations are palpably insufficient to state such a cause of action. Accordingly, by separate decision and order, dated October 14, 2011, the claim for damages 2 [* 4] has been dismissed. The declaratory judgment cause has also been dismissed because it fails to state a cause of action (see Dweck v Oppenheimer & Co., Inc., 30 AD3d 163 [1st Dept 2006]; cf 200 Genesee St. Corp. v City of Utica, 6 NY3d 761, 762 [2006J [where the motion was for summary judgment and thus it was appropriate to declare the parties' rights on the merits in favor or the defendant rather than dismiss the complaintJ). Plaintiff fails to make a factual showing sufficient to support repleading (see Sanders v Sch({fer, 39 NY2d 727, 729l1976]; Bishop v Maurer, 83 AD3d 483, 485 l 1st Dept 20 I 11; see generally Janssen v Incorporated Vil. ofRockville Ctr., 59 AD3d 15, 27 f2 11 d Dept 2008Jl"the standard to be applied on a motion for leave to replead pursuant to CPLR 3211 ( e)l_as amendedl is consistent with the standard governing motions for leave to amend pursuant to CPLR 3025"]; cf Elliman v lilliman, 259 AD2d 341 ll51 Dept I 999J l"Leavc to replead was properly granted upon an affidavit by a person with knowledge of facts supporting a proposed amended complaint that cured the pleading deficiencies of the original complaint"J). Dated: New York, New York October 17, 2011 RICHARD F. BRAUN, J.S.C. FILED OCT l 9 2011 NEWYOHK COUNTY CLERK'S OFFICE 3

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