Matter of Lublin

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[*1] Matter of Lublin 2013 NY Slip Op 51073(U) Decided on June 26, 2013 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 26, 2013
Sur Ct, Nassau County

In the Matter of Probate Proceedings of the Last Will and Testament of Irving Lublin, Deceased. In the Matter of the Application of Debra Rose Against Seth Lublin, Roselyn Lublin, and the Estate of IRVING LUBLIN, Deceased, By Seth Lublin and Roselyn Lublin as Temporary Executors to Recover Personal Property.


Lori Ann Douglas, Esq. (for respondent)

Moses & Singer

The Chrysler Building

405 Lexington Avenue

New York, NY 10174-1299

Frank Santoro, Esq. (for estate)

Farrell Fritz

1320 RXR Plaza

Uniondale, NY 11556

Bernard Mirotznik, Esq. (guardian ad litem)

2115 Hempstead Tpke.

E. Meadow, NY 11554

Edward W. McCarty, J.

Before the court is a pre-answer motion to dismiss a petition in a miscellaneous proceeding.

The decedent, Irving Lublin, died on September 11, 2010 survived by his wife, Roselyn Lublin and two children, Debra Rosa and Seth Lublin. The decedent's last will and testament [*2]dated February 27, 1997 has been offered for probate and Debra Rosa filed objections thereto. The will which has been offered for probate essentially leaves everything to Roselyn Lublin and Seth Lublin. The will contains a no contest clause.

By petition dated February 22, 2012, Debra Rosa commenced the underlying proceeding which seeks damages from the estate for breach of contract; damages from Seth Lublin and Roselyn Lublin for interference with contract and unjust enrichment; and the imposition of a constructive trust. Specifically, Ms. Rosa alleges that her grandfather, Jack Levinksy, entered into an oral agreement at some point prior to 1983 with the decedent whereby Jack Levinksy purportedly agreed to transfer his ownership in the "Family Business" to the decedent and his wife in exchange for the decedent's promise that he would care for the petitioner "as if [she] were his biological daughter and ensure that [she] eventually received [her] rightful [FN1] share of the Family Business". The petitioner alleges that the Family Business was then transferred to the decedent and his wife. She further alleges that at some point in 1997, the decedent and his wife each transferred twenty-five percent (25%) of the Family Business to Seth Lublin.

Seth Lublin now moves to dismiss the petition pursuant to CPLR 3211(a)(1), (5) and (7) for failure to state a cause of action; that the action is barred by the statute of limitations; that there is a defense founded upon documentary evidence; and that the claim is barred by the statute of frauds.

On a motion to dismiss pursuant to CPLR 3211, every favorable inference must be afforded to the challenged pleading (Held v Kaufman, 91 NY2d 425 [1998]; Matter of Schwartz, 44 AD3d 779 [2d Dept 2007]). "On a motion to dismiss a complaint for failure to state a cause of action, the complaint is to be construed in a light most favorable to the plaintiff (Cohn v Lionel Corp., 21 NY2d 559), and deemed to allege whatever can be implied from its statement by fair intendment (Howard Stores Corp v Ope, 1 NY2d 110)" (Matter of Carvel, NYLJ, Nov. 24, 1995, at 33, col 3 [Sur Ct, Westchester County]). In addition, on a motion to dismiss for failure to state a cause of action, all of the allegations contained in the pleading must be assumed true, and the court must determine whether the alleged facts fit within any cognizable legal theory (Morone v Morone, 50 NY2d 481 [1980]).A contract must be "sufficiently certain and specific so that what was promised can be ascertained" (Joseph Martin, Jr. Delicatessen, Inc. v Schumacher, 52 NY2d 105, 109 [1981]). Agreements which use the terms "fair share" or "fair compensation" are particularly troublesome as they may encompass "any amount from a nominal sum to a material part according to the particular views of the person whose guess is considered" (Varney v Ditmars, 217 NY2d 223, 229 [1916]). As such, the court "cannot aid parties in such a case when they are unable or unwilling to agree upon the terms of their own proposed contract" (Id). Moreover, agreements to take care of someone which contain no specifics as to the form of payment or the frequency and amount of payment have been found to be "too vague to spell out a meaningful promise" (Matter of Kittay, 118 AD2d 647 [2d Dept 1986]; Yedvarb v Yedvarb, 237 AD2d 433, 434 [2d Dept 1997]). [*3]

In the instant proceeding, the purported agreement took place at some time either in 1983 or prior to 1983. Both parties to the alleged agreement are deceased. The terms of the oral agreement were either that Debra receive her fair share or her rightful share either of which is subject to different interpretations. The alleged agreement contained no specifics as to what the family business was, what the parties considered to be either a rightful share or fair share, when the payments or transfer of the business was to occur or any detail whatsoever with regard to the transaction. Moreover, the purported agreement took place in either 1983 or before when the laws of intestacy were different. Debra claims an interest in fifty percent of the family business, but in 1983, her share may have been one-third (EPTL 4-1.1 which was amended in 1994). All of these ambiguities illustrate why courts decline to enforce agreements which are too vague or indefinite. The motion to dismiss the breach of contract claim for failure to state a cause of action is granted. Further, because the court finds that the petitioner failed to state a cause of action on the breach of contract, the claim for interference with contract and unjust enrichment must also fail.

With regard to the petitioner's request to impose a constructive trust, a constructive trust is "the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee" (Beatty v Gugenhim Exploration Co., 255 NY 380, 386 [1919]). The following four requirements must be met: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment (Sharp v Kosmalski, 40 NY2d 119, 120 [1976]). A constructive trust is a "fraud-rectifying" remedy rather than an "intent-enforcing" remedy (Bankers Security Life Ins. Soc. v Shakerdge 49 NY2d 939 [1980]). The promise, however, must be "sufficiently specific to be enforceable" (Matter of Chakin, 273 AD2d 18, 19 [2d Dept 2000]). As stated previously, the agreement in question is too indefinite to support a claim for a constructive trust.

The petitioner has failed to state a cause of action for the imposition of a constructive trust. The motion to dismiss is granted.

This decision constitutes the order of the court.

Dated: June 26, 2013


Judge of the

Surrogate's Court Footnotes

Footnote 1:In his affidavit annexed to the petition, Jerry Broder described the oral agreement as an agreement to give Debra Rosa her "fair" share.

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