Kiss v. Kenny

Counsel for Defendant Debra Rubin: Anthony J. Centone, Anthony J. Centone, P.C., Mohegan Lake, New York. OPINION & ORDER Before the Court are the motion of Defendant Debra Rubin (“Debra”) to dismiss Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) and the motion of Defendant Janet Kenny (“Janet”) to dismiss Plaintiff’s Amended Complaint pursuant to FRCP 12(b)(1), 12(b)(6) and 12(h)(3). (ECF Nos. 24, 25.) For the following reasons, the Amended Complaint is dismissed pursuant to FRCP 12(b)(1) and 12(h)(3) for lack of subject matter jurisdiction. I. BACKGROUND A. Facts For purposes of this motion, the Court accepts as true the facts, but not the conclusions, alleged by Plaintiff in the Amended Complaint. (See ECF No. 23 (“AC”).) I briefly summarize the most relevant facts below. From June 2019 to February 13, 2020, Plaintiff resided at the home of his now-deceased friend, Sharon Kenny (“Sharon”), in Poughkeepsie, New York (the “Residence”). (Id. 2.) Sharon and Defendants were apparently sisters. (See id. 88.) Sharon had entrusted Plaintiff since 2010 with taking care of her father, Jules Kenny (“Jules”), part-time at an agreed-upon hourly rate. (Id. 10.) After Sharon divorced her husband in 2018, she asked Plaintiff if he would increase the hours he cared for Jules. (Id. 11.) Plaintiff was willing, but at the time he resided in New Jersey. (Id. 12.) Sharon proposed providing Plaintiff with exclusive access to a second-floor bedroom at the Residence in exchange for Plaintiff caring for Jules and contributing to expenses, maintenance, and repair. (Id.) In June 2019, Plaintiff agreed to the proposal and moved into the Residence with his wife, taking exclusive control over the second-floor bedroom and having shared access to the rest of the Residence, except for Sharon’s bedroom. (See id.

13-15.) From June 2019 to December 17, 2019, Plaintiff cared for Jules, contributed to the maintenance and expenses of the Residence, and provided companionship for Sharon. (Id. 14.) On December 17, 2019, Sharon passed away. (Id. 16.) Immediately after her death, her family, including Defendants, asked Plaintiff to continue to live at the Residence. (Id. 17.) Plaintiff and his wife agreed to stay and continue the arrangement they had with Sharon, with the understanding that their tenancy would continue until the conclusion of the probate proceedings for Sharon’s estate, which was expected to be on March 20, 2020. (Id.