Opinion
2012-09-26
In the Matter of Phebe H. BAUGHER, deceased. Jonathon Kirk Baugher, respondent; William Hugh Baugher, et al., appellants.
Katten Muchin Rosenman LLP, New York, N.Y. (James Tampellini and Neil V. Carbone of counsel), for appellants. Cullen and Dykman LLP, Brooklyn, N.Y. (Michael P. Ryan, Glenn A. Opell, Ronald J. Rosenberg, and John L. Gardiner of counsel), for respondent.
Katten Muchin Rosenman LLP, New York, N.Y. (James Tampellini and Neil V. Carbone of counsel), for appellants. Cullen and Dykman LLP, Brooklyn, N.Y. (Michael P. Ryan, Glenn A. Opell, Ronald J. Rosenberg, and John L. Gardiner of counsel), for respondent.
, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.
In a probate proceeding in which Jonathon Kirk Baugher, the preliminary executor of the decedent's estate, petitioned pursuant to SCPA 2103 and 2104 to recover certain property on behalf of the estate, William Hugh Baugher, Laraine Baugher Stuek, Ralph Edmond Baugher, Richard Scott Baugher, Lisa Baugher Eppley, and W.S. Wilson Corporation appeal from so much of an order of the Surrogate's Court, Nassau County (Riordan, S.), dated December 23, 2010, as denied their motion to dismiss the petition pursuant to CPLR 3211(a)(1) and (7) based on documentary evidence, failure to state a cause of action, laches, and estoppel, and to impose sanctions on the petitioner pursuant to 22 NYCRR 130–1.1.
ORDERED that the order is affirmed insofar as appealed from, with costs payable by the appellants personally.
“Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” ( Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;see Matter of Chin, 79 A.D.3d 867, 868, 912 N.Y.S.2d 443). Here, the Surrogate's Court properly denied that branch of the subject motion which was to dismiss the petition pursuant to CPLR 3211(a)(1), as the documentary evidence submitted in support of the motion did not resolve all the factual issues as a matter of law and conclusively dispose of the petitioner's contentions ( see Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511).
In determining whether a pleading is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). “The [pleading] must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference” ( Hense v. Baxter, 79 A.D.3d 814, 815, 914 N.Y.S.2d 200;see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720;Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511;Kopelowitz & Co., Inc. v. Mann, 83 A.D.3d 793, 796–797, 921 N.Y.S.2d 108). In addition, a court may consider any factual submissions made in opposition to a motion to dismiss in order to remedy pleading defects ( seeCPLR 3211[c]; Quinones v. Schaap, 91 A.D.3d 739, 740, 937 N.Y.S.2d 262;Ryan v. Cover, 75 A.D.3d 502, 503, 904 N.Y.S.2d 750).
The Surrogate's Court properly denied that branch of the appellants' motion which was to dismiss the petition pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The petition, when considered with certain documents submitted by the petitioner in opposition to the motion, effectively alleges that the petitioner's decedent was entitled to recover retained and current earnings from the appellant W.S. Wilson Corporation.
Further, the Surrogate's Court properly denied that branch of the appellants' motion which was to dismiss the petition on the ground of laches, as the appellants failed to demonstrate prejudice ( see Town of Huntington v. County of Suffolk, 79 A.D.3d 207, 216–217, 910 N.Y.S.2d 454). In addition, the court providently exercised its discretion in denying that branch of the motion which was for the imposition of sanctions against the petitioner ( see Maybaum v. Maybaum, 89 A.D.3d 692, 933 N.Y.S.2d 43;Gureje v. Richardson, 78 A.D.3d 997, 910 N.Y.S.2d 915).
The appellants' remaining contentions are without merit.