The following papers were considered in determining this motion:Notice of Motion to Dismiss, Affirmation of Counsel in Support, with Exhibits, and Memorandum of Law in Support 1, 2Affidavits in Opposition, with Exhibits, and Memorandum of Law 3, 4, 5Reply Memorandum of Law 6DECISION and ORDER In the instant proceeding, Rise Fogel (Rise), as executor of the estate of Mordecai Fogel (Mordecai), moves pursuant to CPLR 3211(a)(1), (3) and (7) to dismiss the petition of Nussin S. Fogel (Nussin) which seeks imposition of a constructive trust on the assets of the estate of Abraham Fogel (the decedent).BackgroundThe decedent died on November 13, 2005, survived by three adult children, namely Mordecai, Nussin and Kayla Menucha Fogel (Kayla). On April 3, 2006, Mordecai filed a petition to probate a written instrument, dated March 12, 1998 (the will), pursuant to which he was nominated as executor and was bequeathed the entirety of the decedent’s estate. Verified objections were interposed by Kayla, asserting that the will was not duly executed, that the decedent lacked testamentary capacity, and that the will was the product of fraud and/or undue influence. Following a four-day bench trial (the probate trial) at which Nussin testified in favor of probate, Kayla’s objections were dismissed and the will was admitted to probate by decision dated September 18, 2007. Letters testamentary issued to Mordecai on November 9, 2007.Mordecai died on August 26, 2017, and pursuant to the terms of the will successor letters testamentary in the decedent’s estate were issued to Nussin on October 31, 2017. Mordecai is survived by his spouse, Rise, who is the executor of his estate.1The Instant ProceedingOn June 20, 2018, Nussin filed the instant petition as a creditor of the decedent’s estate, and seeks imposition of a constructive trust on the remaining assets thereof. Nussin asserts that he and Mordecai maintained a confidential relationship as siblings, and that Mordecai had promised to share the decedent’s estate equally with him. Nussin asserts that he was aware of the will’s dispositive provisions before the decedent’s death, and that Mordecai repeated his promise on occasions both before and after the will was admitted to probate.In reliance on Mordecai’s promise, Nussin asserts that he “waived his right to inquire” into the circumstances of the preparation and execution of the will. While conceding that Mordecai did not execute any written or other formal acknowledgment of his promise, Nussin asserts that Mordecai effected partial performance by transferring “substantial sums to me or for my benefit.” He argues that the distribution of the remainder of the decedent’s assets to Rise, the fiduciary of Mordecai’s estate, operates as unjust enrichment. Nussin seeks imposition of a constructive trust on the remainder of the decedent’s assets for his benefit, and a direction of the court permitting him, as successor fiduciary, to pay over one-half of the decedent’s net distributable estate to himself, upon his accounting.In support of his petition, Nussin proffers an affidavit of Dominic J. Famulari, Esq. (Famulari), to the effect, inter alia, that he represented Mordecai in the administration of the decedent’s estate, and that on an unknown date while visiting a bank with Mordecai, Mordecai stated his intention to share the decedent’s estate with Nussin. Nussin also attaches copies of, inter alia, i) the will, ii) two checks totaling $18,000.00, made out to Nussin and a family member, respectively, both signed by Mordecai and drawn on the decedent’s estate account, and iii) two checks totaling $16,000.00, made out to Nussin and a family member, respectively, both signed by Mordecai and drawn on his personal account.The Motion to DismissOn July 19, 2018, Rise filed the instant motion to dismiss Nussin’s petition, asserting that he lacks standing (CPLR §3211 [a][3]), that there exists documentary evidence establishing a defense (CPLR §3211 [a][1]) and that Nussin has failed to state a cause of action (CPLR §3211 [a][7]). Rise also seeks to strike Famulari’s affidavit, asserting that it reveals confidential communications between Famulari and Mordecai, his client, in violation of CPLR §4503(a)(1) and Rules of Professional Conduct 1.6 (22 N.Y.C.R.R. §1200.6). She asserts that Nussin’s support for admission of the will to probate, including his testimony under oath, at the probate trial, that the will was the true reflection of the decedent’s wishes as to the disposition of his estate, precludes him from now asserting any claim of an interest therein. In support of her motion, Rise attaches, inter alia, copies of i) the underlying proceedings in this matter, ii) the will, iii) Kayla’s statement of issues in the contested probate proceeding, iv) the trial transcript for proceedings in the contested probate on May 21, 2007, and v) brokerage, checking and savings account statements relating to the remaining assets of the decedent’s estate.In opposition, Nussin asserts, inter alia, that following execution of the will, Mordecai advised him that the decedent had bequeathed his entire estate to Mordecai, the purported reason being that the decedent did not wish to “single out” Kayla as the only disinherited child. Nussin asserts that Mordecai advised him that the decedent’s “true wish” was that the brothers share equally in his estate, and that Mordecai asked that he neither approach the decedent during his lifetime regarding the will’s provisions nor oppose admission of the will to probate after the decedent’s death.Nussin avers that Mordecai confirmed his intentions repeatedly, even to third parties, and in fact partially performed his promise by paying out sums from the decedent’s estate on several occasions. He asserts that Mordecai repeated his promise to third parties, including Rise, Famulari and his accountant, Jerry Berger (Berger). In support of his opposition, Nussin attaches, inter alia, copies of i) a second affidavit from Famulari (together, the Famulari affidavits), ii) an affidavit of Berger (the Berger affidavit), stating that he was long aware of, and discussed with Mordecai the completion of, his promise to Nussin, iii) brokerage account statements related to securities held by the decedent’s estate, iv) the checks issued to Nussin or members of his family, and v) emails and screenshots of text correspondence between Nussin and Mordecai.In reply, Rise reiterates her assertion that Nussin lacks standing, on the grounds that his claim arises from a promise made by Mordecai personally. She also asserts that Nussin has no property interest in the decedent’s estate, as his assertion that he “waived” his right to confront the decedent during his lifetime regarding the testamentary scheme is based simply on speculation that the decedent would have altered his plan at Nussin’s request.DiscussionA motion to dismiss a complaint pursuant to CPLR 3211 (a) requires that all inferences be viewed “in the light most favorable to the challenged pleading.” Matter of Baxter, 2017 N.Y. Misc. LEXIS 2951 (Surr Ct Nassau County) (citing Held v. Kaufman, 91 N.Y.2d 425 [1998]). The present motion to dismiss is brought under CPLR 3211(a)(1), (3) and (7). Accordingly, for purposes of determining this motion, the court accepts Nussin’s assertion that Mordecai in fact promised to share the proceeds of the decedent’s estate with him equally. Further, the court accepts as true the evidence proffered in both the Famulari and Berger affidavits that Mordecai reiterated his promise to third parties.As a threshold issue, Rise asserts that Nussin’s petition must be dismissed for lack of capacity to sue, pursuant to CPLR §3211 (a)(3). In order to maintain this proceeding to impose a constructive trust on the assets of the decedent’s estate, Nussin must demonstrate that he has “a tangible stake in the matter which would confer standing to challenge the fiduciary’s actions.” Matter of Bassen, 6 Misc 3d 1012 [A], (Surr Ct, Westchester County 2004) (citations omitted). In general, the interest sufficient to confer standing on an individual must be of a financial nature. “Limitations on standing are thus designed to assure that only persons having a practical concern for the outcome of an issue — as opposed to one ‘resting on sentiment or sympathy’ (citation omitted) — be allowed to have their day in court with respect to it.” In re Morse, 177 Misc.2d 43, 45 (Surr Ct New York County 1998). While it is without question that Nussin seeks to protect a pecuniary interest, the question remains whether that interest is properly asserted against the decedent’s estate, rather than Mordecai’s.Standing to seek relief in the decedent’s estate is not specifically afforded Nussin under the provisions of the SCPA, which defines a “person interested” in a decedent’s estate as “[a]ny person entitled or allegedly entitled to share as beneficiary in the estate…”SCPA §103(39). An individual’s right to share in an estate may arise either from her status as a distributee, defined in SCPA 103(14) as one who is entitled by statute to share in property not disposed of by will (EPTL 4-1.1 et seq), or by devise of real property or bequest of personalty made by a testator. SCPA 103(13), (33).Nussin cannot claim any interest in the assets of the estate based on his status as a distributee or legatee of the decedent. Over a decade ago, Nussin acted in an affirmative manner to acknowledge his father’s wishes, by testifying under oath in support of the validity of the decedent’s will and against his own interests and those of his sister, Kayla, as distributees. This court, relying on Nussin’s testimony as credible and forthright, found that the decedent had duly executed his will, had testamentary capacity and was free of undue influence. Indeed, the court explicitly noted in its decision granting probate that “Nussin testified that…the will represents the decedent’s wishes.” “The equitable doctrine of judicial estoppel precludes a party from adopting a position directly contrary to or inconsistent with a position he or she assumed in a prior proceeding,” and “bars a party from denying the truth of the facts asserted in the first proceeding.” In re Gallagher, 2007 N.Y. Misc. LEXIS 7639 at *15 (Surr Ct Kings County). The estate assets having passed to Mordecai, as directed by the will on behalf of which Nussin testified, he cannot now assert an interest in that property on the grounds of his status as an “interested person,” as contemplated by statute.In his petition, Nussin avers that he is a “creditor” of the decedent’s estate. Notwithstanding that a creditor “shall not be deemed a person interested” in a decedent’s estate (SCPA §103[39]), Nussin does not assert that the decedent made any promise or owed any debt to him which was to be satisfied from the assets of the estate. Throughout his petition, Nussin repeatedly states that the promise of a share of the decedent’s assets was made by Mordecai. The Famulari affidavits and the Berger affidavit in fact support the finding that the promise was Mordecai’s personal commitment, as each notes their understanding that the brothers had an agreement to share.Rise asserts that Nussin cannot rely on his status as a purported creditor of Mordecai, the sole legatee, to afford him standing to seek relief in the decedent’s estate, relying on Matter of Turecamo, 96 Misc.2d 120 (Surr Ct Nassau County 1978). In Turecamo, the judgment creditor of a legatee petitioned for an order pursuant to SCPA §2102 directing the fiduciaries to furnish her with information regarding the legatee’s interest in the estate. The court granted the fiduciaries’ motion to dismiss for lack of standing, without prejudice to renewal upon her appointment as a receiver. Nussin points to dicta regarding the standing of a receiver to sue in a decedent’s estate. He argues that he does not posit his standing on status as a general creditor of Mordecai’s estate, but claims an equitable one-half interest in a particular res (the decedent’s estate assets), similar to an “equitable receiver,” or an assignee of one-half of Mordecai’s interest.2As discussed above, Nussin has no direct interest in the res of the decedent’s estate, any more than does Kayla, by virtue of admission of the will to probate. Any claim of an interest based on “equitable receivership” would of necessity require a finding that Nussin is a creditor of Mordecai’s estate, as it is undisputed that the promise to share the proceeds of the decedent’s estate was personal to Mordecai. As noted by Rise, the fact that Nussin’s purported claim against Mordecai is valued as a fraction of the value of the decedent’s estate does not transform his personal claim against Mordecai into an interest in the decedent’s estate that confers standing.Rise also asserts that Nussin’s petition should be dismissed pursuant to CPLR 3211(a)(1) and (7), for failure to satisfy the elements of constructive trust. Nussin asserts, inter alia, that the elements required for imposition of a constructive trust on the decedent’s assets are satisfied, in that he and Mordecai shared a “confidential relationship,” that he relied on Mordecai’s promise by declining to challenge the validity of the decedent’s will, and that the checks appended to both the petition and his opposition papers are evidence of Mordecai’s partial performance of the promise. As the court has determined that Nussin has no standing to proceed against the decedent’s estate, it is unnecessary to reach arguments which are more appropriately raised in proceedings, if any, against the estate of Mordecai Fogel.Accordingly, the motion by Rise Fogel, as executor of the estate of Mordecai Fogel, to dismiss the petition of Nussin S. Fogel for imposition of a constructive trust on the remaining assets of the estate of Abraham Fogel is granted for lack of standing and the petition is dismissed.All other arguments have been considered but found to be unavailing.This constitutes the decision and order of the court.Date: April 10, 2019Brooklyn, New York
