Ellen Brenner, Plaintiff, v. Jonathan Brenner, Defendant. (2026)

This action arises from a family dispute. Plaintiff, Ellen Brenner, and defendant, Jonathan Brenner, are siblings. Plaintiff alleges that defendant unduly influenced their mother, Irene Brenner, to change her testamentary plans to favor himself and his family, breached fiduciary duties, and committed fraud. Plaintiff's amended complaint (filed on February 24, 2026), asserts twelve causes of action.

On this motion, defendant moves to dismiss the amended complaint in its entirety under CPLR 3211 (a) (1) and (7). Defendant also seeks sanctions under 22 NYCRR 130-1.1 and a filing injunction. The motion is granted in part and denied in part.

DISCUSSION

I. Breach of Fiduciary Duty as Trustee (Cause of Action III)

To state a cause of action to recover damages for breach of fiduciary duty, plaintiff must allege (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct. (See Besen v Farhadian, 195 AD3d 548, 549-550 [1st Dept 2021].) Fiduciary-duty claims must be pleaded with particularity under CPLR 3016 (b). (See Hemingway Group LLC v i80 Group LLC, 222 AD3d 422, 426 [1st Dept 2024].)

Plaintiff alleges that Irene Brenner formed an irrevocable lifetime trust (Trust I) in 2019, naming plaintiff and defendant as co-trustees. The trust instrument provided, in essence, that payments from the principal of the trust estate were to be made for the benefit Irene Brenner and the parties, any children of defendant, or tax-exempt charities. The trust asset at formation was identified as a co-op apartment owned by Irene Brenner. Although the trust instrument recited that the apartment shares were conveyed to the trustees (so as to effect the transfer of the shares into the trust), the shares were never re-registered from Irene Brenner into the names of the parties, as EPTL 7-1.18 requires.

Plaintiff further alleges that defendant attempted to induce Irene Brenner to form a new trust (Trust II), based on the same trust property (the co-op apartment), but with defendant as sole trustee and defendant and defendant's children as sole beneficiaries. It is undisputed that the trust instrument for Trust II was never completely filled out or executed.

Plaintiff contends that (i) as co-trustee of Trust I, defendant owes a fiduciary obligation to plaintiff; and (ii) defendant's alleged effort to induce Irene Brenner to form a new trust for his own benefit (Trust II) breached that Trust I fiduciary obligation.

In seeking dismissal of this claim, defendant argues that because Trust I was never funded with the co-op shares or other property, it never became operative, and therefore could not give rise to fiduciary duties. Defendant's argument that Trust I did not become operative due to an absence of trust property has considerable force. (See EPTL 7-1.18; Matter of Duerr, 162 AD3d 579, 579 [1st Dept 2018].)

Even assuming, though, that Trust I could nonetheless give rise to fiduciary obligations owed by defendant to plaintiff, plaintiff would still have to allege that defendant breached those obligations in a way that harmed plaintiff. And plaintiff has not done so.

Trust II was never executed and therefore did not take effect. Trust I, whatever its funding status, has not been revoked or amended. Therefore, whatever rights plaintiff has as co-trustee and co-beneficiary under Trust I remain the same. Irene Brenner is still alive, and neither her co-op-apartment shares nor any other trust property has been distributed or dissipated. Plaintiff's closest allegation of damage—that she "is deprived now of the value of half of the estate" (NYSCEF No. 41 ¶ 207)—appears in her fraud cause of action count and is conclusory; it does not identify any specific, non-speculative injury flowing from the alleged breach of fiduciary duty. Absent non-speculative allegations of damages, no claim will lie for breach of fiduciary duty. (See Halperin v Van Dam, 2026 NY Slip Op 023333, at *2 [1st Dept Apr. 16, 2026].)

The branch of defendant's motion to dismiss plaintiff's breach-of-fiduciary-duty claim is granted.

II. Undue Influence (Cause of Action II)

Undue influence is a cognizable claim in New York that is typically raised in the context of transactions between individuals in a fiduciary relationship. (See Sepulvida v Aviles, 308 AD2d 1, 7-8 [1st Dept 2003] [collecting cases].) If a party establishes that a transaction (a contract, a property transfer, execution of a testamentary instrument, and so on), was the product of undue influence, the transaction will be rescinded or voided ab initio. (See id.; Rejic v Faust, 165 AD3d 716, 719 [2d Dept 2018].)

A threshold requirement of a claim based on undue influence, therefore, is that the alleged undue influence brought about a transaction that may be rescinded or rendered void. Absent a product of undue influence, the claim is not cognizable, because there is nothing on which a court order or judgment may operate.

Here, plaintiff's undue-influence claim does not identify any executed testamentary instrument that was the product of such influence, and as to which plaintiff is asking this court to grant relief. Trust I—the 2019 irrevocable trust—was executed by all parties and is the instrument plaintiff seeks to enforce, not to challenge. Trust II—the 2023 trust instrument that would have eliminated plaintiff's interests—was never signed and never took effect. (NYSCEF No. 50). Moreover, even assuming that Irene Brenner's will was amended, as plaintiff alleges (NYSCEF No. 41 at ¶¶ 64, 69), Irene Brenner remains alive (id. at ¶ 33), and her will has not been offered for probate. A challenge to a will on undue-influence grounds lies in Surrogate's Court after the testator's death, not in Supreme Court during the testator's lifetime.

Plaintiff appears to allege, in substance, attempted undue influence—that defendant tried but failed to alter testamentary documents through influence over the mother. However, plaintiff provides no authority—and this court has not found any authority—for the proposition that "attempted undue influence" is a recognized cause of action in New York.

The branch of defendant's motion to dismiss plaintiff's undue-influence claim is granted.

III. Unrecognized Causes of Action/Freestanding Claims

Plaintiff's first (bad faith), fifth (actual misconduct), sixth (conflict of interest), seventh (interested persons—Surrogates Act), tenth (perjury or false testimony), and twelfth (civil conspiracy to commit fraud) causes of action are dismissed for failure to state a cause of action.

None of these claims is a recognized, independent cause of action in New York. Bad faith, actual misconduct, and conflict of interest may be relevant to a breach-of-fiduciary-duty claim but are not standalone torts. (See e.g. New York Univ. v Continental Ins. Co., 87 NY2d 308, 316-320 [1995] [holding that no cause of action exists for bad-faith denial of insurance benefits]; Sheehy v Clifford Chance Rogers & Wells, LLP, 1 AD3d 225, 230 [1st Dept 2003] [holding that plaintiff's allegations that "defendant acted in bad faith" are insufficient to support a "claim for breach of fiduciary duty" because plaintiff "failed to allege an independent tort"], revd in part on other grounds, 3 NY3d 554 [2004].) Civil conspiracy is not an independent tort. (See Kovkov v Law Firm of Dayrel Sewell, PLLC, 182 AD3d 418, 418-419 [1st Dept 2020].) And perjury is a criminal offense, not a civil cause of action. (See Crandall v Bernard, Overton & Russell, 133 AD2d 878, 879 [3d Dept 1987].)

The branch of defendant's motion to dismiss these claims is granted.

IV. Remaining Causes of Action

Plaintiff's fourth (constructive trust), eighth (tortious interference), ninth (fraud on the court), and eleventh (fraud) eleventh each fail to state a cause of action.

Fraud on the court involves willful conduct that is deceitful, obstructionist, and which injects misrepresentations and false information into the judicial process that undermine the integrity of the proceeding. (See CDR Creances S.A.S. v. Cohen, 23 NY3d 307, 317 [2014].) To invoke this doctrine, a party must demonstrate by clear and convincing evidence, that the opposing party "acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case" through conduct such as fabrication of evidence or falsification of documents "central to the truth-finding process." (Id.) Plaintiff's allegations on this count identify no specific fabricated evidence, perjured testimony, or fraudulent conduct directed at the court.

Tortious interference with prospective economic advantage requires wrongful interference with a business relationship. (See Tsatskin v Kordonsky, 189 AD3d 1296, 1298, [2d Dept 2020].) Plaintiff does not allege a business relationship between herself and her mother. (See NYSCEF No. 41.)

The allegations supporting plaintiff's fraud claim fail to identify any specific misrepresentation made, the time and place it was made, or justifiable reliance by plaintiff. The claim is therefore subject to dismissal for failure to satisfy the particularity requirement of CPLR 3016 (b). (See Lama Holding Co. v. Smith Barney Inc., 88 NY2d 413, 421 [1996].)

A constructive trust requires (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment. (See Frazier v Barnes, 226 AD3d 566, 567 [1st Dept 2024].) Here, Irene Brenner is alive, the co-op shares remain in her name (see NYSCEF No. 51), and defendant has not personally acquired any of her mother's assets. Absent allegations of a transfer or of unjust enrichment, this claim fails.

The branch of defendant's motion to dismiss these claims is granted.

V. Sanctions, Costs and Fees, and Vexatious-Litigant Injunction

Defendant seeks sanctions and a filing injunction against plaintiff. Notwithstanding the deficiencies in the amended complaint—including citations to "AI research" as legal authority (NYSCEF No. 41) and plaintiff's failure to assert viable causes of action—the underlying claims are not sanctionably frivolous or vexatious. That filings by plaintiff's counsel have, on multiple occasions, been procedurally invalid—and also needlessly discourteous to opposing counsel (see NYSCEF No. 26 at 1; NYSCEF No. 27 at 1-2, NYSCEF No. 78 at 3-8)—does not warrant the extreme remedy of imposing a filing injunction. (See Cangro v. Rosado, 111 AD3d 422, 422 [1st Dept 2013].)

Accordingly, it is

ORDERED that the branch of defendant's motion to dismiss plaintiff's complaint under CPLR 3211 (a) (7) is granted; and the action is dismissed, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the branch of defendant's motion for sanctions and a filing injunction is denied; and it is further

ORDERED that defendant shall serve notice of entry on plaintiff; and shall serve notice of entry on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.

DATE 5/7/2026

Gerald Lebovits, J.