Matter of La Forgia

[*1] Matter of La Forgia 2015 NY Slip Op 51160(U) Decided on July 21, 2015 Sur Ct, Richmond County Gigante, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2015
Sur Ct, Richmond County

In the Matter of the Estate of Frank C. La Forgia, Deceased.



2013-331/N



Plaintiff's Attorney: Robert A. Straniere, Esq.

Phone — 917-880-7303

Defendants' Attorneys: Gordon Mehler, PLLC

Phone — 212-207-8700

Daniel C. Marrotta, Esq.

Phone — 718-390-0555
Robert J. Gigante, J.

Defendants Joseph LaForgia ("Joseph"), Lisa LaForgia ("Lisa") and No.2 JRL LLC ("JRL") move, inter alia, to dismiss the verified complaint in this action transferred from Supreme Court.

Frank C. LaForgia ("decedent") passed away on January 27, 2013. His last will and testament was admitted to probate and letters testamentary were issued to his daughters Cindy LaForgia ("Cindy") and Donna LaForgia ("Donna") and to Anthony J. Reitano ("Anthony"), a friend, by decree of this Court dated June 6, 2013. Letters of trusteeship for various testamentary trusts were also issued by said decree. By order of this Court dated April 23, 2014, Anthony's request to resign as executor was granted. Cindy and Donna are the current co-executors of the estate.Plaintiff, denominated as the decedent's estate, commenced the instant action by the filing of a verified complaint in Supreme Court, Richmond County, in June of 2014.[FN1] Plaintiff, in said verified complaint, alleges, in sum, that funds of the decedent were used to purchase a certain parcel of real property ("property") where he could continue to oversee his business operations; that Joseph arranged this financial transaction; and that as time progressed, Joseph exerted increasing control over this property by, for example, collecting rental income therefrom. Plaintiff further contends that through Joseph's fraudulent conduct and unbeknownst to the decedent, title to this property was placed [*2]in JRL, an entity controlled by Joseph and Lisa, either at the closing in 2006 or, through the use of forged documents, at a later date; that from the closing until his death, the decedent believed he was the owner of the property based on advice Joseph gave him; and that Joseph and Lisa are attempting to sell the property and will retain the proceeds of the sale. Plaintiff seeks a declaratory judgment determining that it is the rightful owner of the property,[FN2] an accounting for the income derived from the property, and a preliminary injunction enjoining its sale or encumbrance.

Defendants filed the present motion in October of 2014. They urge several grounds in support of dismissal, namely that the complaint fails to state a cause of action upon which relief can be granted (CPLR 3211[a][7]) due to lack of the required specificity regarding Joseph's alleged fraudulent conduct (CPLR 3016[b]) and that, in any event, the claims are refuted by documentary evidence (CPLR 3211[a][1]) and barred by the Statute of Limitations (3211[a][5]). Defendants also seek an order striking certain matter from the complaint (CPLR 3024[b]), and Lisa seeks dismissal of the complaint insofar as asserted against her, in addition to the aforementioned grounds advanced for dismissal.

The pleading under scrutiny in a CPLR 3211 dismissal motion is to be liberally construed (Leon v Martinez, 84 NY2d 83, 87 [1994]). The reviewing court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (id, at 87-88; see also, Nonnan v City of New York, 9 NY3d 825, 827 [2007]). A plaintiff must allege, to properly plead a fraud claim, that "(1) the defendant made a representation or a material omission of fact which was false and the defendant knew to be false, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury" (McDonnell v Bradley, 109 AD3d 592, 593 [2013], quoting Selechnik v Law Off. of Howard R. Birnbach, 82 AD3d 1077, 1078 [2011]).

CPLR 3016(b) provides, for a fraud cause of action, that "the circumstances constituting the wrong shall be stated in detail." The purpose of this section's pleading requirement is to give notice to the defendant of the allegedly actionable conduct (Sargiss v Magarelli, 12 NY3d 527, 530 [2009]), not to require "unassailable proof of fraud" (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]). Thus, it is sufficient that "a complaint allege the basic facts to establish the elements of the cause of action" sounding in fraud (id, at 492).

In the case at bar, defendants contend that the fraud claim is not sufficiently pleaded. They claim that the circumstances surrounding Joseph's statements to the decedent that the latter was the rightful owner of the property are not provided. They also assert that the element of reliance is lacking, since the deed conveying the property to JRL in 2006 was recorded and, therefore, the decedent could have verified [*3]ownership of the property by resort to the public record. They further argue that since the decedent knowingly used his funds to purchase the property, no fraud was involved.

The Court finds that, while the complaint is not artfully drafted, the allegations therein, combined with the affidavits submitted by plaintiff (see, Sargiss v Magarelli, 12 NY3d 527, 531, supra), are sufficient to plead a cause of action for fraud. The complaint, when viewed sympathetically, as it must be at this state of the litigation, alleges that Joseph knowingly misrepresented that the decedent would be the owner of the property in order to cause the latter to provide the funds for its purchase and that the decedent justifiably relied on this misrepresentation to his detriment. Therefore, the branch of defendant's motion seeking dismissal of the complaint pursuant to CPLR 3211(a)(7) is denied in all respects.

A cause of action for fraud must be commenced within six (6) years of the commission of the fraud or "two years from the time the plaintiff ... discovered the fraud, or could with reasonable diligence have discovered it" (CPLR 213[8]; see also, CPLR 203[g]). The "reasonable diligence" test is an objective one (Vilsack v Meyer, 96 AD3d 827, 828 [2012]). The focus is on whether plaintiff was "possessed of knowledge of facts from which [the fraud] could be reasonably inferred" (Erbe v Lincoln Rochester Trust Co., 3 NY2d 321, 326 [1957]).

In the case at bar, defendants claim that the fraud cause of action accrued in 2006 when JRL took title to the property as evidenced by the public record, and, as a result, this action commenced in 2014 is barred by the six year statute of limitations. Furthermore, they argue that since JRL's ownership of the property is part of the public record, the two year "discovery rule" does not save the fraud claim. This court disagrees with the latter contention. A liberal reading of the complaint allows the possibility that the decedent reasonably relied on Joseph's assurance that the former owned the property, obviating the need to confirm this by examining the public record. This is sufficient to survive a dismissal motion (see, Vilsack v Meyer, 96 AD3d 827, 829, supra; see also, Budhu v Budhu, 33 Misc 3d 398 [Sup Ct Kings Co. 2011]). Therefore, that branch of the motion to dismiss pursuant to 3211(a)(5) is in all respects denied. Furthermore, dismissal pursuant to 3211(a)(1) is also denied, since the documentary evidence in the form of the recorded deed does not negate the fraud claim or render it untimely for the reasons discussed above.

"A party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading" (CPLR 3024[b]). The court's focus on a motion pursuant to this section "is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action" (Soumayah v Minnelli, 41 AD3d 390, 392 [2007]). Therefore, "[m]atters that are unnecessary to the viability of the cause of action and would cause undue prejudice to the defendants should be stricken from the pleading..." (Irving v Four Seasons Nursing & Rehabilitation Ctr., 121 AD3d 1046, 1048 [2014]). This Court, in applying the above standard, agrees with defendants that the disputed matter should be stricken. Therefore, defendants' motion is granted to the extent that paragraphs nine and ten are stricken from the complaint.

Lisa's motion to dismiss the complaint as asserted against her is in all respects denied. The Court finds that the complaint, when viewed liberally, sufficiently alleges [*4]actionable conduct by her.

It is unclear if the plaintiff's request for a preliminary injunction is being pursued. In any event, this demand for relief should be sought by motion (CPLR 6311[1]). Therefore, the cause of action seeking a preliminary injunction is dismissed, without prejudice to renewal in the proper format.

Finally, the personal representative is the proper party to bring an action on behalf of an estate (EPTL 11-3.1). Thus, the description of the plaintiff in the caption and complaint is amended to reflect Cindy and Donna, as co-executors of the estate, as the proper plaintiff. This corrects a mere defect in the pleading and defendants are not prejudiced thereby, since Cindy and Donna verified the complaint.

Settle Order.

Dated: July 21, 2015

___________________________________

Robert J. Gigante, Surrogate

Footnotes

Footnote 1:The propriety of the designation of decedent's estate as plaintiff will be discussed, infra.

Footnote 2:This Court can grant "the relief requested without issuing a declaratory judgment" (Matter of Greenwold, 236 AD2d 400, 401 [1997]; see also, Matter of Dolloff v Dolloff, et al., 2015 NY Slip Op 25219 [Sur Ct Erie Co. 6/29/15]).