Levy v Levy
Annotate this CaseDecided on April 17, 2018
Supreme Court, Queens County
Miriam Levy, Plaintiff,
against
Shelomo Levy, Defendant.
714668/2017
Robert J. McDonald, J.
The following electronically filed documents read on this motion by defendant SHELOMO LEVY for an Order pursuant to CPLR 3211(a)(1),(5),(7), and (10) dismissing this action:
Papers Numbered
Notice of Motion-Affirmation-Memo. of Law-Exhibits EF 9 - 21
Affirmation in Opposition-Memo. of Law-Exhibits EF 22 - 25
Affirmation in Reply EF 27
Plaintiff Miriam Levy (Miriam) commenced this action by filing a summons and complaint on October 23, 2017. The verified complaint alleges that defendant Shelomo Levy (Shelomo) has grossly mismanaged and continues to mismanage the Estate of David Levy (David), Miriam's late husband, by losing undisclosed properties to real estate tax lien foreclosures, failing to manage and pay all requisite taxes, and failing to transfer the properties out of the name of the deceased David Levy to the Estate. Miriam seeks declaratory judgments regarding the extent, scope and effect of certain releases, indemnifications, stipulations, and the mortgage lien upon her property.
By way of relevant background, David died testate on April 3, 1998. David's Will, dated May 27, 1997, was offered for probate in the Queens County Surrogate's Court by his brother Shelomo, the nominated executor and the trustee of a testamentary trust created thereunder. Miriam filed untimely objections to the probate of the Will, which were rejected. Shelomo was appointed as executor on June 1, 1999. The Will makes no provision for [*2]Miriam. As such, Miriam filed a Notice of Election on November 29, 1999. A Stipulation between Miriam, Shelomo, and Miriam's children Tamar Levy (Bida) Ravid (Tamar) and Ronit Levy Getter (Ronit) was entered into in March 2000. Miriam was represented by counsel. The Stipulation provides, in relevant part, that one-half of the real property located at 63-98 Alderton Street, Kew Gardens, New York (the Alderton Property), which was wholly owned by David at the time of his death and was to pass either to the Trust or to his residuary estate, which does not include Miriam, was to be deeded one-half to Miriam and one-half to the Trust. Rather than seek judicial approval of the Stipulation, the parties entered into a Release and Indemnity Agreement and Undertaking Agreement (RIA).
The RIA provided, in relevant part, that the Alderton Property was to be deeded one-half to Miriam and one-half to the Trust, to satisfy Miriam's Right of Election; Miriam, Tamer and Ronit indemnified Shelomo from all claims or potential claims by each of them as well as the beneficiaries of the Trust, who are David and Miriam's grandchildren, as to all matters with respect to the Estate and Trust; Miriam would grant a mortgage to Shelomo on the Alderton Property to secure her indemnification of Shelomo thereunder; Shelomo would decline his nomination as trustee of the Trust, and Tamar and Ronit would file a petition to qualify as successor co-trustees thereof; and the parties would exchange general releases.
Pursuant to the terms of the RIA, Tamar and Ronit were appointed as successor co-trustees on May 28, 2004, and a deed to the Alderton Property and the Mortgage were filed. Subsequent to the filing of the deed to the Alderton Property, Tamar and Ronit executed a further deed conveying the Trust's one-half interest in the Alderton Property to Miriam.
Based on the above, as well as the submitted Will, Stipulation, RIA, deeds and mortgage, Shelomo contends that as plaintiff has accepted and retained the benefits of the agreements, she waived the right thereafter to challenge it (see Adrian Family Partners I, L.P. v Exxonmobil Corp., 61 AD3d 901 [2d Dept. 2009]). Shelomo also contends that the complaint is barred regardless of whether the statute of limitations began to run from the 2000 Stipulation, the 2002 RIA, or when the deed was recorded in 2004 (see Bowes & Co. v American Druggists' Ins. Co. 96 AD2d 1023 [1st Dept, 1983], aff'd 61 NY2d 750 [1984][noting that there is a six year statute of limitations for a rescission claim]). Lastly, Shelomo contends that as Tamar, Ronit and the Trust beneficiaries are not parties to this action, all of the necessary parties are not before the Court, and as such, the action must be dismissed (see McKnight v Bank of New York & Trust Co. 254 NY 417 [1930]).
In opposition to the motion to dismiss, Miriam affirms that [*3]she is a victim of domestic violence, battered woman syndrome, and intimate partner violence in connection with her marriage to David, and subsequently by Shelomo. Since she was suffering the effects of domestic violence, she was unable to appreciate the import of her obligations in settling the Notice of Election she filed in 1999 regarding David's Estate. Miriam affirms that Shelomo failed to disclose the entire value of the Estate at the time the releases were signed. Miriam also contends that after the execution and delivery of the RIA and related agreements there has been ongoing fraud, negligence, and breaches of fiduciary duty by Shelomo regarding David's Estate. In addition to her own affidavit, Miriam submits an affidavit from Linda Gunsberg, Ph.D. who affirms that due to a combination of domestic violence, family violence, and PTSD, Miriam did not have a sufficient state of mind or mental capacity to understand what rights she had or what rights she was giving up when she signed various indemnification and releases.
On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must 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 (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 [2002]; Leon v Martinez, 84 NY2d 83 [1994]; Greer v National Grid, 89 AD3d 1059 [2d Dept. 2011]; Prestige Caterers, Inc. v Siegel, 88 AD3d 679 [2d Dept. 2011]). A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) (see CPLR 3211[c]; Sokol v Leader, 74 AD3d 1180 [2d Dept. 2010]). When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one (see Basile v Wiggs, 98 AD3d 640 [2d Dept. 2012]). "To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Teitler v Pollack & Sons, 288 AD2d 302 [2d Dept. 2001]).
While this Court agrees with Shelomo that one who has
accepted and retained the benefits of an agreement, waives his or her right to challenge it, this Court finds that the documentary evidence does not resolve all factual issues as a matter of law. Rather, the affidavits of Miriam and Dr. Gunsberg present questions of fact as to whether Miriam had mental capacity to understand what rights she had or what rights she was giving up. Thus, those branches of the motion to dismiss pursuant to CPLR 3211(a)(1) and (7) are denied.
Pursuant to CPLR 213(8), a cause of action alleging fraud [*4]must be commenced within the greater of six years from the date the cause of action accrued or two years from the time the plaintiff, with reasonable diligence, could have discovered the fraud.
While it appears that this action is time-barred, if, as Miriam contends, she lacked capacity at the time the instruments were executed, and thus, the instruments were acquired by fraud, the instruments would be voidable. Moreover, as Dr. Gunsberg affirms that Miriam still suffers from the effects of the marriage to David, discovery is necessary to determine if the alleged fraud could have been discoverer with reasonable diligence prior to two years before this action was commenced.
Lastly, Shelomo argues that Ronit and Tamar, as co-trustees under David's testamentary trust, and David and Miriam's grandchildren, who are the beneficiaries of the testamentary trust, are necessary parties. As parties to the agreements and as intended third-party beneficiaries, this Court agrees that Ronit and Tamar and David and Miriam's grandchildren are necessary parties and said shall be made parties to this action.
Accordingly, and for all of the above stated reasons, it is hereby,
ORDERED, that defendant SHELOMO LEVY's motion to dismiss this action is denied in its entirety; and it is further
ORDERED, that pursuant to CPLR 1001(b), plaintiff MIRIAM LEVY shall amend the complaint to join, as necessary parties, Ronit Levy Getter and Tamar Levy (Bida) Ravid and any and all of David and Miriam's grandchildren.
Dated: April 17, 2018
Long Island City, NY
_______________________
ROBERT J. MCDONALD
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
