Musachio v Musachio

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Musachio v Musachio 2013 NY Slip Op 32088(U) August 28, 2013 Supreme Court, Suffolk County Docket Number: 1224469 Judge: Peter Mayer 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. [* 1] INDEX NO. 12-24469 SUPREME COURT - STATE OF NEW YORK [.A.S. PART 17 - SllFFOLK COUNTY P h !E S E N T : Hon. PETER H. M.AYER MOTION DATE 12-7-12 MOTION DATE 3-18-13 ADJ. DATE 3- 19-13 Mot. Seq. # 001 - MG # 002 - MD Justice of the Supreme Court X MAYER, ROSS & HAGEN PC Attorney for Plaintiff 178 East Main Street Patchogue, New York 1 1772 MIIRK MUSACHIO, Plaintiff, - against - TABAT, COHEN, BLUM & YOVINO, LLP Attorney for Defendants 500 Montauk Highway, Suite N West Islip, New York 11795 ANNMARIE MUSACHIO, MARYANN WILLIAMS, and JOHN WILLJAMS, Defendants. X Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by the defer dants Maryann Williams and John Williams, dated Novembe- 16,20 12, and supporting papers; (2) Notice of Cross Motion by thi: plaintiff, dated February 22,201 3, and supporting papers; ( 3 ) Affirmation in Opposition to the cross motion and in Reply by the defendants Maryann Williams arid John Williams, dated March 4,20 13, and supporting papers; (4) Affidavit in Opposition to the cross motion by the defendant Annmarie Musachio, dated March 9,20 13 , and supporting papers; (5) Other -(art4aker t l e m i i p p i n o t i o n ) ; and now ' UPON DUE DELIBERA.TION AND CONSIDEXATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that the motion by defendants Maryann Williams and John Williams for an order purs Jant to CPLR 32 1 1 dismissing plaintiffs complaint against them, pursuant to CPLR 65 14 (b) cancelling a no1 ice of pendency and directing the Clerk of the County of Suffolk to record the order vacating the Notice of Pendency, and pursuant to CPLR 65 14 (c) awarding counsel fees in the sum of $3,645.00 is granted; and, it is further ORDERED t h a t the cross motion by plaintiff for an order pursuant to CPLR 3025 (b) permitting him to anend the complaint is denied. [* 2] Mu jachio v Musachio Index No. 12-24469 Page 2 Plaintiffand defendant Annmarie Musachio were divorced on December 2 1,201 1 after entering into a stipulation of settlement on August 15, 2006 . The judgment of divorce, entered by the Suffolk County Clerk on December 29,201 1, indicated that the agreement and the Court s memorandum decision and order after trial dated April 7, 201 1, which modified the stipulation to some extent, shall be incorporated by reference in this Judgment of Divorce. The judgment of divorce further provided that equitable distribution and ancillary issues shall be in accordance with the August 15, 2006 settlement agreement. Pertinent portions of the August 15,2006 stipulation of settlement state as follows. (The italicized portions of the stipulation represent handwritten changes made by the parties.) ARTICLE V FINAL DISPOSITION OF EOlJITABLE DISTRIBUTION 2. The parties intend that their real and personal property division, as provided in this agreement, shall be final and irrevocable. Unless the parties execute a formal amlendment to this agreement, in writing, it is their intention that the HUSBAND S separate property shall forever remain his and the WIFE S separate property shall forever remain hers notwithstanding (a) the reconciliation of the parties; (b) the rescission of termination of this agreement; or (c) a remarriage of the parties to each other, in the event they are hereafter divorced. ARTICLIEVI EQUITABLE DISTRIBUTION AND DIVISION OF ASSETS 5 . Marital Residence; (13) Simultaneously, with the execution of this Stipulation of Settlement, the Husband shall execute a Bargain and Sale Deed with Covenants transferring all of the Husband s rights, title and interest to thtz building and surrounding land known by and as 18 Springbriar Lane, Kings Park, New York to the Wife. The Husband shall be responsible for any liens, judgments, parking violations in his individual name either of record or on notice as of August 15, 2006. *HOWGVW, m y ju-d..gm.awi-ovLieM/a&Agj+mth&mdvimiwuaL . (3-c&m,kWW The court s records reflect and the submissions of the parties show that this was a highly contested litigious matter involving some thirty-six motions, spanning over seven years, including appellate court involvement, and hearings before at least three different Supreme Court Just ices. [* 3] Musachio v Musachio Index No. 12-24469 Page 3 (I)) Within ninety days of this Stipulation cf Settlement few a/ r/e~i.mL ttuwtxq?~ &to- wc& 45 dcLyy the Wife shall cause the Husband s name to be removed from the two aforementioned mortgages with Chase and Country Wide. On August 10, 2006 a bargain and sale deed was executed transferring title of the premises known as 18 Springbriar Lane, Kings Park, New York from Mark A. Musachio and Annmarie Musachio to Annmarie Musachio. On September 24,2007 Annniarie Musachio executed a bargain and sale deed transferring her interest in the said premises to Annmarie Musachio, John Williams and Maryann Williams. Thereafter, on December 15,2007, Annmarie Musachio, John Williams and Maryann Williams executed a bargain and sale deed transferring the premises to Maryann Williams. [* 4] Musachio v Musachio Index No. 12-24469 Page 4 In or about August 20 12 plaintiff commenced the within action against his former spouse, defendant Annmarie Musachio, and her mother and step-father, defendants Maryann Williams and John Williams (..the Williams defendants ), to recover damsges, both compensatory and punitive, for defendants alleged breaches [of subsequent court orders], contemptuous acts, and unjust enrichment, and for the declaration of an equitable lien on the premises all in connection with the transfer of the premises to defendants Williams from defendant Annmarie Musachio. Defendants Williams now move for an order dismissing plaintiff s complaint against them on the grounds that it fails to state a cause of action, that affirmative defenses are based upon docunientary evidence, and that the causes of action to do not qualify as a basis for filing a notice of pendency. The Williams defendants also seek an order directing the Clerk of the Counly of Suffolk to vacate ..he notice of pendency and granting counsel fees. Plaintiff cross moves for an order permitting him to amend his complaint. The court may grant a motion to dismiss pursu,mt to CPLR 321 1 (a) (1) only where the documentary evidence utterly refutes plaintiffs allegar ions, conclusively establishing a defense as a f matter of law (Goshen v Mutual Life Ins. Co. o NIL, 98 NY2d 314,326 746 NYS2d 858 [2002]; Sobel v Ansanelli, 98 AD3d 1020,95 1 NYS2d 533 [2d Dept 20121; Harris v Barbera, 96 AD3d 904, 947 NYS2d 548 [2d Dept 20121). In order to qualify as documentary evidence the printed materials must be unambiguous and of undisputed authenticity (Forztanetta v John Doe I , 73 AD3d 78, 86, 898 NYS2d 569 [2d Dept 20101). Generally, printed matevials such as letters and e-mails are not considered undeniable or an out-of-court transaction which are lcquivalent to documentary evidence (see North Shore Towers Apt. Inc. v Three Towers Assoc., 104 AD3d 825,961 NYS2d 504 [2d Dept 20131; Fontanetta v John Doe 1,supr,a),nor is a retainer agrzement (Harris v Barbera, supra) In determining whether to dismiss a complaint pursuant to CPLR 321 1 (a) (7), the court must assume to be true the facts plead, give every favorable inference to the allegations, and determine only whether the alleged facts fit any cognizable legal theory (Dickinson v Igoni, 76 AD3d 943,908 NYS2d 85 [2d Dept 201 01; Tsutsui v Bavasch, 67 AD3d 896, 892 NYS2d 400 [2d Dept 20091). The test is whether the pleading states a cause of action, not whether the plaintiff has a cause of action (Sokol v Leader, 74 AD3d 1 180, 904 NYS2d 153 [2d Dept 201 01). Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in derermining a motion to dismiss (EBC I, Inc. v Goldman, Saclzs & Co., 5 NY3d 11, 19, 799 NYS2d 170 [2005]). In determining if a pleading states a cause ofaction, the sole criterion for the Courts is whether from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law (Guggenheimer v Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182 [ 19771). Here. the allegations in plaintiffs complaint are utterly refuted by the documentary evidence submitted, i.e. the August 15, 2006 stipulation of settlement and the judgment of divorce dated December 2 1,20 1 1, and therefore, the complaint must be dismissed (see Goshen v Mutual Life Ins. Co. o A: Y., supiu: Sobel v Ansanelli, supra; Harris v Barbera, supra). Each of the four causes of action, f all disjointed and inarticulate, are based upon the premise that a transfer of the marital premises to the parents of defendant Annmarie Musachio was designed and calculated to render her judgment proof in the years after the transfer. However, it is clear that the parties contemplated this very transfer in the 200,; stipulation, long before the matrimonial and custodial issues became so protracted. Thus, the [* 5] Musachio Musachio Intles No. 12-23469 Page 5 ~7 documentary evidence conclusively establishes as a matter of law that no cause of action can be based upon a transfer of the premises to the Williams defendants by defendant Annmarie Musachio. Similarly, no cognizable legal theory has been asserted in the complaint against the Williams de fendants. Each allegation as to defendants purported breach, contemptuous conduct, and unjust en,-ichnientis stated as against defendant Annmarie l~ustachio.No allegation is made with regard to conduct of defendants Williams. As such, the allegations fit no cognizable legal theory against them and must be dismissed (see (Dickinson v Igoni, supra; Z sutsui v Barasch, supra). Accordingly, the motion of the Williams defendants is granted and plaintiffs complaint is dismissed against the them. As the p l intiff has failed to show that the action against the Williams defendants was prosecuted in good faith, ~ pu-suant to CPLR 65 14 (b), the Clerk of the County of Suffolk is directed to vacate any lispendens wl- ich may have been placed upon the premises known as 18 Springbriar Lane, Kings Park, New York. CPLR 65 14 (c) provides that [tlhe court, in m order canceling a notice of pendency under this section, may direct the plaintiff to pay any costs and expenses occasioned by the filing and cancellation, in (idditionto any costs of the action. An award of reasonable counsel fees is permitted under this section (see The Dermot Co., Inc. v 200 Haven Co., 73 AD3d 653, 901 NYS2d 268 [ 1st Dept 20101; So,renson v257/117Realty, LLC, 62 AD3d 618,881 NYS2d 43 [lst Dept 20091 lv dismissed 13 NY3d 93.5, 895 NYS2d 3 11 [2010]; #l Funding Center, Im. v H & G Operating Corp., 48 AD3d 908, 853 NI S2d 178 [3d Dept 20081). Inasmuch as the Williams defendants have requested counsel fees in the sum of $3,645.00 for the defense of the baseless action instituted against them by plaintiff, which sum ha:, not been contested by plaintiff, the court finds th(3tthe amount is reasonable in light of the work required to defend and to bring this motion. Thus, attorneys fees in the sum of $3,645.00 are awarded to 1 he Williams defendants payable by plaintiff. Turning to the complaint as asserted against defendant Annmarie Musachio, it is noted that the July 30, 2012 decision and order of the Hon. Carol MacKenzie, J.S.C. stated that [tlhe Court is also constrained, based upon the protracted and unnecessary litigation attending the cessation of this marriage, to require either party to this action must o 3tain [sic]leave of Court before filing any adclitional [motions]. Such leave will only be granted on an assessment of the issue to be decided and the relief sought (Musaclzio v Musaclzio, Sup Ct, Suffolk County, July 30, 20 12, MacKenzie, J., Index No 2 1672/04). Here, it would appear that plaintiff has attempted to circumvent the order of Justice MacKenzie by filing a new action on August 10, 201 2, less than two weeks after the order directing that leaie of court be obtained before further action be taken, by adding additional defendants who were not parties to the matrimonial proceeding. Inasmuch as this Court has dismissed the action as to the def mdants Williams (and finds that it borders on frivolous), leave from Justice MacKenzie must be obt 3ined before this matter may proceed against defe idant Annmarie Musachio (that is, should plaintiff wish to pursue the matter which should ultimately be dismissed based upon documentary evidence and the failure to state a cause of action). Thus, the petitim as asserted against defendant Annmarie Musachio is dismissed withoul prejudice to obtaining leave from Justice MacKenzie. It is obvious that plaintiff s filing of the within action was a blatant attempt to circumvent and flaunt the July 30, 2012 ord :r of Justice MacKenzie. [* 6] Musachio I Musachio liitles No. 12-24469 Pa;c 6 With regard to plaintiff-s motion to amend the pleadings. CPLR 3025 (b) states: Amendments and supplemental pleadings, by leave. [Eff on and after Jan. 1, .?01.?] .4 party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be iccompanied by the proposed amended or supplemental plieading clearly showing the changes or additions to be made to the pleading. Alihough C PLR 3025 (b) directs that leave to amend pleadings shall be freely given in the absence of prejudice or surprise, where the proposed amendment is devoid of merit, leave to amend should be Inc. denied (see Ferrandino & SOIY, v Wheaton Bulfders,Inc., LLC, 82 AD3d 1035, 920 NYS2d 123 [2c Dept 201 11; Ingrami v Ralvner, 45 AD3d 806, 847 NYS2d 132 [2d Dept 20071; Hill v 2016 Realty As:ioc., 42 AD3d 432, 839 N fS2d 801 [2d Dept 20071). Here, where the complaint has been dismissed as herein above indicated, the motion to amend same is denied as moot. However, the court notes that plaintiff failed to clearly show the changes or additions in his proposed amended complaint. Additionally, the Court finds that the proposed amended cornplaint provides no further or additional allegations which would rehabilitate it sufficiently to state a valid cause of action against any of the defendants. Accordingly, as it does not comply with CPLR 3025 (b) and is devoid of merit, plaintiffs motion to amend the complaint would be denied on the merits as well. PETER 1-1.MAYER, J . f C .

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