Bashian & Farber, LLP v Syms

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Bashian & Farber, LLP v Syms 2017 NY Slip Op 32963(U) May 18, 2017 Supreme Court, Westchester County Docket Number: 60595/2014 Judge: Charles D. Wood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 60595/2014 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 05/18/2017 To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order. with notice of entry. upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------------------------------------)( BASHIAN & FARBER, LLP and GARY E. BASHIAN, P.c., Plaintiffs, DECISION & ORDER Index No.: 60595/2014 Sequence Nos. 13,14 &15 -againstRICHARD SYMS, RICHARD SYMS AS TRUSTEE OF THE SYMS FAMILY REVOCABLE TRUST DATED MARCH 11,2014; INEV A SYMS aka I. EVE SYMS aka EVE SYMS; INVEV A SYMS aka I, EVE SYMS as TRUSTEE OF THE SYMS FAMILY REVOCABLE TRUST DATED MARCH 11,2014; THE SYMS FAMILY REVOCABLE TRUST DATED MARCH 11,2014; RUTH MERNS, MICHAEL D. LYNCH, ESQ. and John Does #1-10, Defendants. ----------------------------------------------------------------------)( WOOD,J. The following papers were read in connection with moving defendants Michael D. Lynch, Esq, ("Lynch") motion to dismiss (Seq 13); Ruth Merns ("Merns") motion to dismiss (Seq 14), and plaintiffs' cross- motion to amend complaint (Seq IS): Lynch Notice of Motion, Counsel's Affirmation, Exhibits, Memorandum of Law. Merns Notice of Motion, Counsel's Affirmation, Exhibits. Merns Affidavit, Exhibits, Memorandum of Law, Plaintiffs' Opposition to Merns' Motion, Exhibits. Plaintiffs' Notice of Cross-Motion, Counsel's Affirmation, Exhibits. Mern's Reply Memorandum of Law. 1 of 8 [* 2] INDEX NO. 60595/2014 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 05/18/2017 Lynch Affidavit, Exhibits. Plaintiffs Reply Affirmation. Plaintiffs commenced July 10,2014, defendant this proceeding by filing the summons Richard Syms retained plaintiffs for legal representation father's will. Richard Syms executed an Engagement 20 I 0, which memorialized the terms of payment February 22, 2010, Richard Syms provided began their legal representation plaintiffs and verified complaint of him. Agreement in challenging his on February 19, by plaintiffs. On with plaintiffs for legal services rendered an initial $12,500 retainer to plaintiffs, The opposing and plaintiffs PaI1Y'S legal fees ran to $2.7 million, and fees were $418,423.76. Richard Syms partially paid the legal fees. Plaintiffs Richard Syms misrepresented dated claim that his inability to pay the fees due to financial constraints. According to Plaintiffs, Richard Syms engaged in seven real estate transfers and an attempted eighth transfer to make himself judgment that title to at least seven properties in part to defendant such as plaintiffs. They claim belonging to Richard Syms have been transferred did not pay the outstanding legal fees owed to plaintiffs, as counsel in the New York County Surrogate's owned by defendants, held by defendants or of this action, from transferring or otherwise plaintiffs and enjoined defendants encumbering any real property and making any financial transfers, gifts, loans or other transactions except to the extent needed for shelter, expenses. 2 2 of 8 filed a Court, which was granted on April 8, 2014. On July 14,2014, this court executed an order that restrained during the pendency completely Ineva Syms, his wife, and some later into a family trust. After defendants motion to withdraw proof from known creditors, food, clothing, of funds and regular living [* 3] INDEX NO. 60595/2014 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 05/18/2017 In the current round of motions, Lynch seeks to dismiss plaintiffs fraudulent conveyance fourth cause of action for as against him (Seq 13); Merns seeks to dismiss against her (Seq 14); and plaintiffs seek to amend the complaint, plaintiffs complaint as adding causes of action against Lynch (Seq 15). Based upon the foregoing, the motions are decided as follows: It is well settled that pursuant to CPLR(a)(7) "upon a motion to dismiss [for failure to state a cause of action], the sole criterion is whether the subject pleading states a cause of action, and if, from the four corners of the complaint, manifest any cause of action cognizable pleading a liberal construction, factual allegations are discerned which, taken together, at law, then the motion will fail. The court must afford the accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Esposito v Noto, 90 AD3d 825 [2d Dept 2011]; (Sokol v. Leader. 74 A.D.3d 1180, [2d Dept 2010]); (Eua v Purcell & Ingrao P.C., 99 AD3d 843, 845 [2d Dept 2012] Iv to appeal denied, 20 NY3d 857,984 conclusions documentary Dept 1996]). NE2d 324 [2013]). However, or factual claims which were either inherently evidence (West Branch Conservation If the court considers evidence this does not apply to legal incredible or flatly contradicted Assn. v County of Rockland, submitted by a defendant any defects in the complaint," of a motion to by the plaintiff to remedy and if the court does so, "the criterion is whether the proponent pleading has a cause of action, not whether he has stated one" [1994]; Uzzle v Nunzie Ct. Homeowners v Doral Conference 227 AD2d 547 [2d in support dismiss under CPLR 3211 (a)(7), a court may consider affidavits submitted Ctr. Assoc., by (Leon v Martinez, ofthe 84 NY2d 83, 88 Ass'n, Inc., 70 AD3d 928, 930 [2d Dept 2010]); Greene 18 AD3d 429, 430 [2d Dept 2005]). 3 3 of 8 Affidavits and other [* 4] INDEX NO. 60595/2014 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 05/18/2017 evidentiary material may also be considered to "establish conclusively that plaintiff has no cause of action" (Simmons v Edelstein, 32 AD3d 464, 465 [2d Dept 2006]), or where a meritorious claim lies within inartful pleadings (Lucia v Goldman, 68 AD3d 1064, 1065 [2d Dept 2009]). More succinctly, under CPLR 3211 (a)(7), the standard is whether the pleading states a cause of action, but if the court considers evidentiary material, the criterion then becomes "whether the proponent of the pleading has a cause of action" (Sokol v Leader, 74 AD3d 1180, 1181-82 [2010]; Marist College v Chazen Envtl. Servo 84 AD3d 11181 [2d Dept 2011]). Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus (Dee v Rakower, 112 AD3d 204 [2d Dept 2013]). Addressing Lynch's motion to dismiss (Seq 13), in or about August 2015, defendants Richard and Eve Syms ("Syms Defendants") retained Lynch to provide legal services in connection with the transfer of their property located at 199 N. Salem Road, in Lewisboro from the Syms Family Revocable Trust to Merns, who is Richard Syms' 90 year old mother. Lynch charged Syms Defendants $800 for his legal services for this transfer. When the $250,000 payment for the property did not arrive in Lynch's escrow account on the date of closing, Lynch prepared a deed for no consideration to Merns. However, according to documents and affidavits in the record, Syms defendants received a $250,000 check from Merns for payment for the property. Syms Defendants contend that the transfer of the property to Merns was for consideration of $250,000 as evidenced by the cashier's check issued by Merns dated August 27,2015. Other indicia of a sale was the purchase of title insurance. Through his affidavit, Lynch attests that during his representation ofSyms Defendants, Lynch was unaware that they were involved in a lawsuit over legal fees with plaintiffs. Lynchs' counsel 4 4 of 8 [* 5] INDEX NO. 60595/2014 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 05/18/2017 argues that plaintiffs and Creditors have brought a conclusory Law ('DCL") claim of fraudulent as against Lynch. Moreover, conveyance under the Debtor Lynch points out that plaintiffs have not offered proof that Lynch played any role other than as attorney in the transfer of the property. is not a debtor, and even giving every favorable Lynch participated in. and assisted inference to plaintiff's the Syms Defendants in carrying transfer, the allegations are not pled with sufficient particularity of action for fraudulent conveyance particularity allegations establishing defraud the existence that the conveyance conspiracy participate plaintiff. as against Lynch. Plaintiffs allegations out the alleged that plaintiff's for a cause have not pled any facts with any Instead, plaintiffs have made unsupported plan, scheme or Syms and Merns and Lynch with the particular Lynch argues that fraudulent to satisfy the elements by the Syms of the property was part of a common in by defendants Thus. of a conspiracy. conclusory Lynch fraudulent conveyance intention to claim should be dismissed as against Lynch for failure to state a claim pursuant to CPLR 3211 (a)(7). In opposition to the motion, plaintiffs argue that Lynch aided and abetted defendants fraudulent enterprise to deny plaintiffs' the Syms Defendants conspiracy recovery oflegal fees, and he participated of their interest with the particular in real property as part of a common in their in the transfers by plan, scheme or intention to defraud plaintiffs. Pursuant to Debtor and Creditor Law S276. "[ e ]very conveyance incurred with actual intent, as distinguished either present or future creditors, from intent presumed is fraudulent made and every obligation in law, to hinder, delay, or defraud as to both present and future creditors. The burden of proof to establish actual fraud under Debtor and Creditor Law S276 is upon the creditor who seeks to have the conveyance set aside and the standard for such proof is clear and convincing (see Marine Midland Bank v Murkoff. 120 AD2d 122, 126 [1986]). A conveyance 5 5 of 8 evidence that renders the [* 6] INDEX NO. 60595/2014 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 05/18/2017 conveyor insolvent is fraudulent as to creditors without regard to actual intent, if the conveyance made without fair consideration" (U.S. Bancorp Equip. Fin., Inc. v Rubashkin, 98 A.D.3d was 1057, 1060 [2d Dept 2012]). Here, plaintiffs have failed to plead a fraudulent merely conclusory, insofar there is no evidence property. or a beneficiary, Nothing owed legal fees to plaintiffs. and there is no evidence that he benefitted in the record supports plaintiffs. Moreover, claim, as their allegations to show that Lynch participated scheme, or that he was aware that Syms Defendants transferee conveyance nonmoving a finding that Lynch possessed in her payment of$250,000. of funds to pay plaintiffs. party plaintiffs, inference, Lynch's Lynch is not a from or took control of the any intent to defraud and according Accordingly, was given The court finds that plaintiffs have not pled any facts to support that Lynch was either a debtor or conspired Syms Defendants in a common there is evidence in the record that suggests that fair consideration by Merns to the Syms Defendants are with a debtor to deprive the even in the light most favorable that party the benefit of every possible to the favorable motion to dismiss for failure to state a cause of action is granted. Likewise, the court grants that she paid fair consideration Merns' motion to dismiss. Through ($250,000) Merns attests for the property. Merns notes that plaintiffs' states that in 2011 the property was valued at $200,000, higher in 2015 could be reasonable her affidavit, so it is unclear to her how a sum of 25% said to be less than fair consideration. the only proof of anything that plaintiffs have concerning complaint the conveyance Merns' counsel cites that to Merns is that sellers (not Merns) failed at the time to pay $1000 in state transfer tax. In opposition, plaintiffs allege that Merns conspired with others, or had complicit to defraud plaintiffs and had actual intent and purpose to hinder delay and defraud. 6 6 of 8 assistance [* 7] INDEX NO. 60595/2014 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 05/18/2017 In light of the foregoing, the complaint fails to state a cause of action as against Merns that she conspired with others to defraud plaintiffs and had actual intent and purpose to hinder delay and defraud, or demonstrate that Merns payment of $250,000 for the property makes her a conspirator in a plot to defraud. Next the court has considered plaintiffs motion to amend the complaint to name Lynch as a John Doe under the Third Cause of action sounding in Fraud; to add a cause of action sounding in Aiding & Abetting Fraud against Lynch; and to add a Cause of Action sounding in violation of Judiciary Law 487 against Lynch. Initially, in the exercise of its discretion, the court denies plaintiffs motion for leave to serve an amended complaint since it did not provide a copy of the proposed amended complaint, and the proposed amendment is palpably insufficient for the reasons stated above (Chang v. First Am. Title Ins. Co. of N.Y., 20 AD3d 502 [2d Dept 2005]). Nonetheless, even if the court were to consider the proposed amendment, for the reasons stated herein and in consideration of the elements of the proposed causes of action, that motion would be denied. THEREFORE, based upon the foregoing, it is hereby: ORDERED, that defendant Michael D. Lynch's motion to dismiss (Seq 13) the Fourth Cause of Action as against him is granted; and it is further ORDERED, that defendant Ruth Merns' motion to dismiss the Fourth Cause of Action as against her (Seq 14) is granted; and it is further ORDERED, that plaintiffs motion to amend the complaint (Seq 15) is denied; and it is fUl1her 7 7 of 8 [* 8] INDEX NO. 60595/2014 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 05/18/2017 o RD ERED, that moving defendants shall serve a copy of this order wi th notice of entry upon the parties within ten (10) days of entry, and file proof of service within five (5) days of service, pursuant to the NYSCEF ORDERED, Courtroom protocols; and it is further that the parties are directed to appear on June 5, 2017, 800, the Compliance Conference Part of the Westchester at 10:30 A.M., in County Courthouse. The Clerk shall mark his records accordingly. The arguments by the parties not explicitly addressed herein have been reviewed and deemed to be devoid of merit. This constitutes Dated: the Decision and Order of the Court. May 18,2017 White Plains, New York ODD Court TO: Bashian & Farber, LLP Attorneys for Plaintiffs 235 Main Street, 6th Floor White Plains, New York 1060 I Landman Corsi Ballaine & Ford, PC Attorneys for Defendant Lynch 120 Broadway, 27th Floor New York, New York 10271 Michael S. Haber, Esq. Attorney for Defendants 225 Broadway, Suite 3010 New York, New York 10007 Ruth Merns 7310 Ashford Place Delray Beach, Florida 33446 8 8 of 8

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