Plaintiff, Gabriel Top, is an elderly man who was for several years under the care of his longtime companion, the late Dana Natalia Glicklich (decedent). Plaintiff, through an asserted attorney-in-fact, has sued decedent’s daughter, defendant Renee Glicklich (both in her personal capacity and as the executor of decedent’s estate) and decedent’s son-in-law, defendant Melhem Ibrahim. Plaintiff has alleged that during the period in which decedent was caring for plaintiff, she, Glicklich, and Ibrahim stole hundreds of thousands of dollars from him. Plaintiff’s complaint seeks to recover the allegedly stolen money, along with compensatory and punitive damages. Defendants now move to dismiss under CPLR 3211 (a) (1), (3), and (4). In the alternative, defendants move for transfer of this action to Surrogate’s Court, which is currently adjudicating the probate proceeding for decedent’s estate. The motion is denied. BACKGROUND According to the allegations of the complaint, plaintiff is a 91-year-old Holocaust survivor who, following a stroke in 2003, suffered memory loss and ultimately dementia. Decedent, plaintiff’s long-time companion, was entrusted as plaintiff’s designated health-care agent and general caretaker. On January 12, 2012, plaintiff executed a Power of Attorney (POA) in favor of his son, David Top. In October 2016, David Top realized that nearly all his father’s assets had been withdrawn from his accounts. After reviewing plaintiff’s financial records, David Top concluded that defendants had systematically transferred plaintiff’s assets — more than $700,000 — to themselves. Following decedent’s passing in December 2016, David Top (acting as plaintiff’s attorney-in-fact) commenced a proceeding in Surrogate’s Court, New York County, seeking the appointment of a temporary administrator to represent decedent’s estate. Surrogate Court issued letters of temporary administration to Glicklich on May 4, 2018. On November 26, 2018, plaintiff’s counsel notified defendants’ counsel by email, attaching a draft complaint, that plaintiff intended within a few days to bring an action in Supreme Court against defendants. Two days later, on November 28, Glicklich (acting as temporary administrator of her mother’s estate) brought a new proceeding in Surrogate’s Court, seeking a determination of the validity of plaintiff’s claims against decedent’s estate as identified in the draft complaint. Shortly thereafter, David Top, acting as his father’s attorney-in-fact pursuant to the POA, commenced this action against defendants. The complaint asserts a breach-of-fiduciary-duty claim against Glicklich as her mother’s representative, fraud and unjust enrichment claims against all defendants, and aiding-and-abetting claims against Glicklich and Ibrahim. It seeks (i) return of the allegedly stolen $730,000 (whether from Glicklich-as-representative or from Glicklich and Ibrahim individually); (ii) compensatory damages against Glicklich and Ibrahim indvidually for the harm plaintiff suffered due to the loss of the allegedly stolen funds (such as a lower level of healthcare and personal care); and (iii) punitive damages against Glicklich and Ibrahim individually. Defendants now move to dismiss under CPLR 3211 (a) (1), (3), and (4), arguing (i) that David Top lacks the capacity to bring this action on his father’s behalf because his POA was revoked before the action was filed; and (ii) that this action should be dismissed regardless in favor of the proceeding in Surrogate’s Court. Alternatively, defendants seek to transfer this action to Surrogate’s Court under CPLR 325 (e). DISCUSSION I. Defendants’ Challenge to David Top’s Capacity to Bring This Action Defendants’ motion to dismiss under CPLR 3211(a) (1) and (3) is based on an asserted letter from plaintiff to David Top dated November 25, 2013, revoking David Top’s POA. Defendants argue that this letter constitutes documentary evidence that conclusively establishes that David Top lacked capacity to bring the action. This court disagrees. A document such as the letter here can constitute “documentary evidence” for purposes of CPLR 3211 (a) (1) only if its “authenticity is undisputed and [its] contents are ‘essentially undeniable.’” (Lloyd’s Syndicate 2987 v. Furman Kornfeld & Brennan, LLP, 182 AD3d 487, 487 [1st Dept 2020], quoting SA Realty Servs., LLC v. Marcus & Millichap Real Estate Inv. Servs. of NY, Inc., 128 AD3d 587, 588 [1st Dept 2015].) Here, plaintiff hotly disputes the authenticity of the letter, identifying specific aspects of the letter’s contents and the circumstances of its drafting and notarization that support this challenge. (See NYSCEF No. 26 at 14-15.) Additionally, a motion to dismiss under CPLR 3211 (a)(1) will succeed only if the documentary evidence relied upon “resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim.” (Fortis Fin. Servs. v. Fimat Futures USA, Inc., 290 AD2d 383, 383 [1st Dept 2002] [internal quotation marks omitted].) That is not the case here. The POA at issue states that its revocation is governed by General Obligations Law (GOL) §5-1511. That provision requires the principal to deliver the revoking instrument to the agent “in person or by sending a signed and dated revocation by mail, courier, electronic transmission or facsimile to the agent’s last known address.” GOL §5-1511 (3) (b). And revocation of the POA “is not effective as to the agent until the agent has received a revocation as required by GOL 5-1511(3).” GOL §5-1511 (5) (b). Here, defendants have not established that the November 25, 2013, letter was sent or delivered to David Top as required by §5-1511. At most, defendants assert that Gabriel Top “sent” the letter to David Top “on or about January 11, 2014″; but defendants have not provided any evidence of its mailing or transmission, or even identified the particular means by which it was purportedly sent. Defendants argue that David Top had actual knowledge of the POA’s revocation. But the evidence that defendants appear to be relying upon for David Top’s knowledge is an email sent in October 2017 from counsel for decedent to counsel for plaintiff. (See NYSCEF No. 23 at 6-7 [citing NYSCEF No. 25 at 5-9].) That email does not establish that the requirements of GOL §5-1511 (3) and (5) were satisfied here. The November 2013 letter thus does not constitute documentary evidence for purposes of CPLR 3211 (a) (1); and defendants have not demonstrated at this stage of the litigation that David Top lacked capacity to bring this action on behalf of his father for purposes of CPLR 3211 (a) (3). The motion to dismiss on those grounds is denied. II. Defendants’ Argument that Plaintiffs’ Claims Against Them Should Be Adjudicated in Surrogate’s Court Defendants also contend that to the extent David Top does have capacity to bring this action as his father’s attorney-in-fact, the claims raised in the action should be heard in Surrogate’s Court, rather than here. This court is not persuaded. Defendants assert first that this action should be dismissed under CPLR 3211 (a) (4). That provision affords the court discretion to dismiss an action pending before it in favor of another, previously filed action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. (Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG, 110 AD3d 783, 784 [2d Dept 2013].) Defendants contend that because the Surrogate’s Court proceeding was filed before this action, dismissal here is warranted under CPLR 3211 (a) (4). This court disagrees. Courts recognize an exception “to the general application of this defense…where competing actions have been commenced reasonably close in time to another.” (National Union Fire Ins. Co. of Pittsburgh, Pa. v. Jordache Enters., 205 AD2d 341, 343 [1st Dept 1994] [internal quotation marks omitted].) The present action was brought only three weeks after Glicklich brought the Surrogate’s Court proceeding in her representative capacity. The record also strongly suggests that Glicklich commenced the Surrogate’s Court proceeding immediately upon being notified of plaintiff’s intention to file suit in this court. This court declines to dismiss this action under CPLR 3211 (a) (4) merely because Glicklich won the race to the courthouse. (See (L-3 Communications Corp. v. SafeNet, Inc., 45 AD3d 1, 8 [1st Dept 2007] [noting that "courts have often deviated from the first-in-time rule where one party files the first action preemptively, after learning of the opposing party's intent to commence litigation"].) Dismissal under CPLR 3211 (a) (4) is unwarranted for the additional reason that Surrogate’s Court would lack jurisdiction to hear some of the claims pending in this action. In particular, plaintiff has brought compensatory and punitive damages claims against Glicklich and Ibrahim individually, for the harms done to him as a result of the alleged theft of his savings by defendants. Awarding plaintiff damages on these claims against defendants in their personal capacities would not affect or relate to decedent’s estate. Surrogate’s Court would not have jurisdiction over these claims. (See Matter of Piccione’s Estate, 57 NY2d 278, 291 [1982].) For similar reasons, this court concludes that it would be inappropriate to transfer the action to Surrogate’s Court for adjudication. To be sure, plaintiff’s claims seeking the return of the allegedly stolen $730,000 might well be within Surrogate’s Court jurisdiction, even assuming that they are not currently in decedent’s probate estate, given the possibility that plaintiff could seek restitution of the $730,000 from the estate. But given the heavy factual overlap between plaintiff’s claims for return of the money and his claims for damages, it would make little sense to split those claims by transferring part, but not all, of this action to Surrogate’s Court. In any event, this court is loath to countenance any further delay in deciding plaintiff’s theft-related claims against defendants, as might result if the Surrogate’s Court proceeding were suddenly to grow in size and complexity due to a transfer of some of the claims raised by plaintiff here. Accordingly, for the foregoing reasons it is hereby ORDERED that the branch of defendants’ motion seeking dismissal under CPLR 3211 (a) (1), (a) (3), and (a) (4) is denied; and it is further ORDERED that the branch of defendants’ motion seeking transfer of this action to Surrogate’s Court under CPLR 325 (e) is denied. Dated: September 18, 2020
