Opinion
Index No. 151451/2021
04-11-2022
LUCIENNE REED, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JOHN SUGG, Deceased, Plaintiff, v. SAINT AT LARGE, INC., Defendant.
Unpublished Opinion
PRESENT: HON. ALEXANDER TISCH Justice.
DECISION + ORDER ON MOTION
ALEXANDER TISCH, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 were read on this motion to/for DISMISS.
Upon the foregoing documents, defendant Saint At Large, Inc., moves to dismiss this action pursuant to CPLR 3211 (a) (1) and (4); or, in the alternative, staying all proceedings in this action pending the determination of the Surrogate Court in Case No. 2016-3704/A.
In October of 2017, plaintiff filed a petition for turnover of estate property pursuant to Surrogate's Court Procedure Act § 2103 in the Surrogate's Court of New York County. Defendant and non-party Stephen Pevner are named as respondents in that matter. Surrogate Court Procedure Act § 2103 allows a fiduciary of an estate to petition the court "on knowledge or information and belief that property the fiduciary is entitled to is in the possession of someone else (SCPA § 2103 [a]). As stated within the petition, plaintiff filed the application "in order to obtain discovery and ultimately recover [] Estate assets'' which include "real estate... a[n] [] art collection, and corporate assets," which includes the property unit at issue in this action (NYSCEF Doc. No. 17 at K 8, Plaintiffs Surrogate's Court Petition). That petition is currently pending in the Surrogate Court.
The statute states, in relevant part, as follows: "A fiduciary may present to the court which has jurisdiction over the estate a petition showing on knowledge or information and belief that any property as defined in 103 or the proceeds or value thereof which should be paid or delivered to him is (a) in the possession or control of a person who withholds it from him, whether possession or control was obtained prior to creation of the estate or subsequent thereto . . ." (SCPA § 2103 [1]).
In February of 2021, plaintiff initiated this matter for ejectment and holdover use and occupancy damages, as she believes defendant's lease expired by its own terms on November 11, 2020, leaving defendant no basis to claim possession or occupancy of the premises. Defendant now moves to dismiss this action pursuant to CPLR 3211 (a)(1) and CPLR 3211 (a)(4); or in the alternative, staying all proceedings in this action pending the determination of the Surrogate Court in Case No. 2016-3704/A.
A motion to dismiss a complaint based upon documentary evidence pursuant to CPLR 3211 (a) (1) "may be appropriately granted where the documentary evidence utterly refutes the plaintiffs factual allegation, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y.. 98 N.Y.2d 314, 326 [2002]). While a lease may properly qualify as "documentary" evidence, the "evidence must be unambiguous and of undisputed authenticity" (Fontanetta v Doe. 73 A.D.3d 78, 84-85 [2d Dept 2010]). Here, it cannot be said that the lease qualifies as "documentary evidence" in light of plaintiff s argument as to the lease's authenticity. In any event, the parties dispute the interpretation of the purported lease provisions, presenting issues as to at least one element of a claim for ejectment, which cannot be resolved upon a motion to dismiss.
To state a claim for ejectment, plaintiff must allege "(1) it is the owner of an estate in tangible real property, (2) with a present or immediate right to possession thereof, and (3) the defendant is in present possession of the estate" (RPAI Pelham Manor. LLC v Two Twenty Four Enterprises. LLC. 144 A.D.3d 1125, 1126 [2d Dept 2016]; see Jannace v Nelson. L.P., 256 A.D.2d 385, 385-86 [2d Dept 1998]).
"Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same" (DAIJ. Inc. v Roth, 85 A.D.3d 959, 959 [2d Dept 2011], citing Whitney v Whitney. 57 N.Y.2d 731, 732 [2d 1982]). "[W]hile a complete identity of parties is not a necessity for dismissal [or otherwise] under CPLR 3211(a)(4), there must be a 'substantial' identity of parties, 'which generally is present when at least one plaintiff and one defendant is common in each action'" (Mason ESC, LLC v Michael Anthony Contr. Corp.. 172 A.D.3d 1195, 1196 [2d Dept 2019], quoting Jaber v Elayyan, 168 A.D.3d 693, 694 [2d Dept 2019]). A court need not dismiss the action "before it where another relevant action is pending; rather, the court 'may make such order as justice requires,' including staying the proceeding pending the resolution of the other relevant action" (342 W. 30th St. Corp. v Bradbury. 30 Misc.3d 132[A], 2011 NY Slip Op 50037[U], 2011 WL 135257 [App Term 1 st Dept 2011]; see CPLR 2201). "[A] court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources" (Zonghetti v Jeromack, 150 A.D.2d 561, 562 [2d Dept 1989]).
The identity of the parties in the two separate proceedings are substantially similar. The only difference is Stephen Pevner is individually named in the Surrogate's Court and not this case. Additionally, the claims and relief sought in each matter are substantially the same, contrary to plaintiffs position. In the matter before the Surrogate's Court, plaintiff seeks retrieval of assets she believes belongs to the estate and to eject defendant from the property (see NYSCEF Doc No 17). In this matter, plaintiff seeks ejectment of the defendant based on the belief that the property is owned by the estate or herself and that she has a present right to possession, as well as holdover use and occupancy damages.
Plaintiff asserts a stay is not warranted because the matter before the Surrogate's Court will not determine all the questions present in this action, specifically, the holdover use and occupancy damages. Nevertheless, a resolution from the Surrogate's Court will resolve whether plaintiff is entitled to the property, which will have a direct effect on plaintiffs claims before this Court, including what amount of use and occupancy damages plaintiff is entitled to, if at all. Further, plaintiffs claims to the extent asserted in her individual capacity would be preserved by the stay.
Accordingly, it is hereby ORDERED that the branch of the motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (1) is denied without prejudice; and it is further
ORDERED that the branch of the motion to dismiss the complaint pursuant to CPLR 3211 (a) (4) is granted to the extent that this matter is stayed pending the resolution of the turnover petition in New York County Surrogate's Court under file no. 2016-3704/A.
Upon resolution of the Surrogate's Court petition, the parties may submit a stipulation to the Part Clerk to restore the matter to active status, set a time for defendant to file and serve an answer, and schedule a preliminary conference, as needed.
This constitutes the decision and order of the Court.