X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Hand Down List decided on: June 12, 2019

By Dillon, J.P.; Leventhal, Connolly and Christopher, JJ.Claudine Bulbin, res, v. Michael OCarroll ap — (Index No. 605980/15)In an action, inter alia, to recover damages for conversion, the defendants appeal from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered May 5, 2016. The order denied the defendants’ renewed motion pursuant to CPLR 3211(a) to dismiss the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendants’ renewed motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.The plaintiff, the daughter of Leslie B. Tenzer (hereinafter the decedent) and the administrator of the decedent’s estate, previously brought a proceeding against Lenore Dowis for the turnover of certain property belonging to the estate. The resulting decree of the Surrogate’s Court directed Dowis to transfer the subject property to the decedent’s estate. On appeal, this Court affirmed the finding of the Surrogate’s Court that the signatures on a deed to real property and certain other documents were not genuine signatures of the decedent (see Matter of Tenzer, 144 AD3d 1044).While that appeal was pending, the plaintiff commenced this action against the witnesses for Dowis in the turnover proceeding, alleging fraudulent conspiracy to convert property from the decedent’s estate. The plaintiff alleged, inter alia, that the defendants conspired to provide, and did provide, intentionally false testimony that they witnessed the decedent sign the deed transferring real property to Dowis.The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), and in an order entered January 20, 2016, the Supreme Court denied the motion without prejudice to renew for failure to attach the pleadings to the motion papers. In an order entered May 5, 2016, the court denied the defendants’ renewed motion. The defendants appeal.We agree with the Supreme Court’s determination denying that branch of the defendants’ renewed motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1). In support, the defendants submitted only excerpts of trial testimony from the prior proceeding and their individual affidavits, neither of which constitute documentary evidence within the meaning of CPLR 3211(a)(1) (see Petrone v. Davidoff Hutcher & Citron, LLP, 150 AD3d 776; Attias v. Costiera, 120 AD3d 1281). Documentary evidence must be unambiguous and of undisputed authenticity, such that the contents of the documents are essentially undeniable (see Matter of Anderson v. Armentano, 139 AD3d 769, 770-771; Fontanetta v. John Doe1, 73 AD3d 78). The evidence submitted also fails to utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Matter of Elberg, 164 AD3d 497).However, the Supreme Court should have granted that branch of the defendants’ renewed motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7). Accepting the facts as alleged in the complaint to be true, and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 NY2d 83, 87; Sokol v. Leader, 74 AD3d 1180, 1181), the complaint fails to state a cause of action (see CPLR 3211[a][7]). The plaintiff’s claims are premised upon the same allegations of forgery and conversion that were the subject of the turnover proceeding, which resulted in a determination in the plaintiff’s favor. Allegations of perjury in the prior proceeding may not form the basis of a subsequent action for damages (see Joseph v. Citibank, 271 AD2d 358). Since the total objective of the purported fraudulent scheme was encompassed by the issues determined in the prior proceeding, namely, the validity of the questioned documents and whether estate property was converted, the causes of action alleging conversion and fraud are barred (see Newin Corp. v. Hartford Acc. & Indem. Co., 37 NY2d 211, 217-218; Yalkowsky v. Shedler, 94 AD2d 684).As the plaintiff’s causes of action alleging conversion and fraud are barred, her cause of action to recover damages for conspiracy (see Dickinson v. Igoni, 76 AD3d 943, 945) and her claim for punitive damages must also fail (see Serrante v. Moses & Singer LLP, 137 AD3d 697).The defendants’ remaining contention is without merit.DILLON, J.P., LEVENTHAL, CONNOLLY and CHRISTOPHER, JJ., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

New York Legal Awards 2021

October 13, 2021
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Register

Women Influence & Power in Law Awards 2021

October 07, 2021
Washington, DC

Women Influence & Power in Law Awards honors women lawyers who have made a remarkable difference in the legal profession.


Register

Women Influence & Power in Law (WIPL) 2021

October 06, 2021 - October 08, 2021
Washington, DC

WIPL is the original global forum facilitating women-to-women exchange on leadership and legal issues.


Register

Immigration Attorney

Rochester, New York, United States

Immigration Attorney   Harter Secrest & Emery LLP, a top-ranked 125+ lawyer firm in upstate New York, is seeking an attorney to j...


Apply Now ›

Labor and Employment Associate

Atlanta, Georgia, United States

Duane Morris LLP is looking for an associate with approximately 3-5 years’ experience for its Employment Practice Group in the Atlanta...


Apply Now ›

Associate Attorney- New York

New York, New York, United States

Smith Mazure, PC, is a highly respected results-oriented law firm serving insurance carriers and self-insured corporations for 50 years. We ...


Apply Now ›

JAVERBAUM WURGAFT HICKS

09/20/2021
NJLJ Web

JAVERBAUM WURGAFT HICKS mourn the passing of our Co-Founding Partner, collegue, and friend.


View Announcement ›

BARTON GILMAN LLP

09/14/2021
CLT Web

Barton Gilman Expands Into Connecticut


View Announcement ›

BARTON GILMAN LLP

09/14/2021
TLI Web

Barton Gilman LLP is excited to announce that its expansion into Philadelphia


View Announcement ›