IN HIS CAPACITY OF TRUSTEE EXECUTOR OF THE ESTATE AND TRUST OF CORA SAMPLE CORA LEE SAMPLE v. LLC KEVIN GREENE NEW YORK COMMUNITY BANCORP INC ROOSEVELT SAVINGS BANK NEW YORK COMMUNITY BANK LAWRENCE GREENE THE KINGS COUNTY PUBLIC ADMINISTRATOR (2026)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on May 7, 2026, under motion sequence number eighteen, by defendant Kevin D. Greene (hereinafter "the movant"), proceeding pro se, for an order:

1. Dismissing all claims, applications, and litigation demands asserted against the defendant Kevin D. Greene individually, pursuant to CPLR 3211 (a) (1), 3211 (a) (3), 3211 (a) (7), CPLR 3212 to the extent deemed procedurally proper, CPLR 3211 (c) if the Court treats the application as one for summary judgment upon notice, and/or such other authority as the Court deems just and proper;

2. Determining that Kevin B. Greene (hereinafter "the plaintiff") has not demonstrated present legal capacity, standing, or authority to pursue claims, discovery demands, or personal liability allegations against the defendant Kevin D. Greene individually in the instant action;

3. Directing plaintiff Keith B. Greene and plaintiff's counsel, Kristian K. Larsen, Esq., to produce, within a time fixed by the Court, competent proof of the plaintiff's present capacity to pursue Kevin D. Greene individually, including current letters testamentary or letters of administration, any current trustee authority, the trust instrument relied upon, proof of any trust res or recorded property transfers into the alleged trust, and any court order authorizing plaintiff's claimed capacity;

4. Deeming admitted, to the extent appropriate under CPLR 3123, those matters in the defendant's Notice to Admit that were not timely denied by a sworn statement;

5. Compelling responses and production pursuant to CPLR 3124 concerning the capacity discovery demands served upon plaintiff and plaintiff's counsel;

6. Precluding plaintiff Keith B. Greene and his counsel, Kristian K. Larsen, Esq., from serving, filing, noticing, further claims, applications, deposition demands, discovery demands, or personal-liability allegations against defendant Kevin D. Greene individually under this index no. 510212/2014 unless and until plaintiff first demonstrates, by admissible proof and further order of this Court, plaintiff's present legal capacity, standing, or authority, and a legally sufficient basis for proceeding against Kevin D. Greene individually.

The motion is opposed.

Notice of motion

Affirmation in support  ¹

Exhibits A-H, I, I-2, I-3, I-4, I-5, I-6

Affirmation of good faith

Memorandum of law  ²

Affirmation in opposition by plaintiff

BACKGROUND

On October 30, 2014, the plaintiff commenced the instant action by filing a summons and complaint with the Kings County Clerk's office (hereinafter "the KCCO").

On May 21, 2015, the movant and co-defendant Kevin D. Greene individually and co-defendant Kevin D. Greene LLC interposed and filed a joint verified answer with the KCCO.

On December 8, 2016, co-defendant New York Community Bank i/s/h/a New York Community Bancorp, Inc., d/b/a Roosevelt Savings Bank a/k/a New York Community Bank (hereinafter "the defendant Bank") interposed a verified answer with the KCCO.

The complaint alleges eighty-two allegations of fact in support of seven denominated causes of action. The first cause of action is for breach of contract asserted against the defendant Bank. The second cause of action is for breach of fiduciary duty asserted against the defendant Bank. The third cause of action is denominated as New York GBL section 349 against the defendant Bank. The fourth cause of action sounds in breach of fiduciary duty asserted against defendant Lawrence Green. The fifth cause of action was incorrectly numbered as the sixth cause of action and was asserted against Lawrence Green for undue influence. The next numbered cause of action was also numbered as the sixth cause of action and was asserted against all named defendants for alleged fraudulent conveyance. The seventh cause of action is asserted against co-defendants Kevin D. Greene and Kevin D. Greene LLC for conversion.

LAW AND APPLICATION

Movant's Motion to Dismiss Pursuant to CPLR 3211 (a) & CPLR 3212

The movant seeks, among other things, to dismiss all causes of action asserted against him pursuant to CPLR 3211 (a) (1), 3211 (a) (3), 3211 (a) (7) and CPLR 3212.

A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211 (a) (1) may be "granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002], citing Leon v Martinez, 84 NY2d 83, 88 [1994]).

"[T]o be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity" (Minchala v 829 Jefferson, LLC, 177 AD3d 866, 867 [2d Dept 2019], citing Fontanetta v John Doe 1, 73 AD3d 78, 86 [2d Dept 2010]). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are 'essentially undeniable,' would qualify as 'documentary evidence' in the proper case" (Minchala v 829 Jefferson, LLC, 177 AD3d 866, 867 [2d Dept 2019], citing Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2d Dept 2010]).

"Where a CPLR 3211(a)(3) motion is based upon an alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" (City of Phila. Bd. of Pensions & Retirement v Winters, 249 AD3d 998, 999 [2d Dept 2026], citing Wilmington Savings Fund Society, FSB v Matamoro, 200 AD3d 79, 89-90 [2d Dept 2021]). "To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff's submissions raise a question of fact as to its standing" (Katz v Hampton Hills Assoc. Gen. Partnership, 186 AD3d 688, 691 [2d Dept 2020], citing Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 60 [2d Dept 2015]).

"When deciding a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Voltaire v Northwell Health, Inc., 250 AD3d 995, 995-996 [2d Dept 2026], quoting Ofman v Richland, 234 AD3d 865, 866 [2d Dept 2025]; Rudovic v Law Off. of Timothy A. Green, 200 AD3d 814, 815 [2d Dept 2021]). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Walrond v New York City Health & Hosps. Corp., 240 AD3d 933, 934 [2d Dept 2025]), quoting Soloviev v Ross Sch., 227 AD3d 746, 747 [2d Dept 2024]).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, 'that there is no defense to the cause of action or that the cause of action or defense has no merit' " (People v Grasso, 50 AD3d 535, 544 [1st Dept 2008]). "Further, all the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 AD3d 535, 544 [1st Dept 2008], citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 610 [2d Dept 1990]).

"CPLR 2214 (a) provides that a notice of motion shall 'specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor' " (Abizadeh v Abizadeh, 159 AD3d 856, 857 [2d Dept 2018], citing Shields v Carbone, 99 AD3d 1100, 1102 [3d Dept 2012]).

"Pursuant to CPLR 2214 (c), a party in an e-filed action may rely on e-filed papers and need not include those papers in its motion papers, 'but may make reference to them, giving the docket numbers on the e-filing system.' " (Reardon v Macy's, Inc., 191 AD3d 712, 714 [2d Dept 2021], quoting Eastern Funding LLC v San Jose 63 Corp., 172 AD3d 818, 819 [2d Dept 2019]). "However, the docket numbers on the e-filing system must be provided" (Reardon v Macy's, Inc., 191 AD3d 712, 714 [2d Dept 2021]).

In this case, the movant did not annex a copy or provide the docket number of the e-filed verified complaint in the motion papers. Therefore, the verified complaint which the movant seeks to dismiss is not part of the record (see Reardon v Macy's, Inc., 191 AD3d 712, 714 [2d Dept 2014]).

The movant's affirmation in support specifically identifies two exhibits, namely exhibits G and H. The movant, however, e-filed several documents in the NYSCEF system without explanation. The movant has made the following arguments in support of the relief requested. The plaintiff has commenced the instant action in a representative capacity as an executor and as a trustee. If the plaintiff wants to pursue a claim against the movant, the plaintiff must first, as a threshold matter, demonstrate his present legal authority that allows him to do so. The movant further contends that absent proof of the plaintiff's authority to act in a representative capacity all causes of action asserted against the movant should be dismissed.

The contentions of the movant were the sole arguments proffered in support of the movant's motion to dismiss pursuant to CPLR 3211 (a) and CPLR 3212. Contrary to CPLR 3211 (a) (1) the movant did not submit documentary evidence establishing a complete defense as a matter of law. Nor did the movant make a prima facie showing that the plaintiff lacked standing. Also, contrary to the requirements of CPLR 2214 (a) and (c) the movant did not annex or provide the e-filed docket number of the verified complaint. Nor did he explain why the allegations of fact contained therein failed to state a cognizable claim.

In sum, the movant's arguments and evidentiary submission did not establish entitlement to dismissal of the causes of action asserted against him under CPLR 3211 (a) or CPLR 3212.

Determining That Plaintiff Has Not Demonstrated Standing

The movant has requested that the Court find that the plaintiff has not demonstrated present legal capacity, standing, or authority to pursue claims, discovery demands, or personal-liability allegations against the movant. It is the movant's burden to establish the plaintiff's lack of legal capacity, standing, or authority to dismiss an action on that basis. By failing to do so, the burden never shifted to the plaintiff to establish the plaintiff's legal capacity, standing, or authority (see Katz v Hampton Hills Assoc. Gen. Partnership, 186 AD3d 688, 691 [2d Dept 2020]; see Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 60 [2d Dept 2015]).

Directing The Plaintiff to Produce Proof of Plaintiff's Capacity

As previously indicated, the plaintiff had no burden to prove his capacity to prosecute the instant action (see Katz v Hampton Hills Assoc. Gen. Partnership, 186 AD3d 688, 691 [2d Dept 2020]; see Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 60 [2d Dept 2015]).

Deeming Facts Admitted Pursuant to CPLR 3123

The movant seeks an order pursuant to CPLR 3123 deeming admitted those facts set forth in the movant's notice to admit that were not timely denied by the plaintiff in a sworn statement.

Contrary to the requirements of CPLR 2214 (c), the movant did not annex a copy or provide the docket number on the e-filed system of the subject notice to admit in the movant's motion papers. The movant failed to provide a document necessary for consideration of the motion and the notice to admit is not part of the record (CPLR 2214 [c]; see Reardon v Macy's, Inc., 191 AD3d 712, 714 [2d Dept 2021]). Thus, the notice to admit is not part of the record (see Reardon v Macy's, Inc., 191 AD3d 712, 714 [2d Dept 2021]).

Compelling Certain Discovery Pursuant to CPLR 3124

The movant seeks an order pursuant to CPLR 3124 compelling the plaintiff to respond and to produce discovery demanded concerning the plaintiff's capacity. Contrary to the requirements of CPLR 2214 (c), the movant did not annex a copy or provide the docket number on the e-filed system of the subject discovery demand in the movant's motion papers. The movant failed to provide a document necessary for consideration of the motion and the discovery demand is not part of the record (CPLR 2214 [c]; see Reardon v Macy's, Inc., 191 AD3d 712, 714 [2d Dept 2021]). Thus, the subject discovery demand is not part of the record (see Reardon v Macy's, Inc., 191 AD3d 712, 714 [2d Dept 2021]).

Moreover, this branch of the motion must be denied for failure to comply with 22 NYCRR 202.7 (a), 22 NYCRR 202.7 (c), and 22 NYCRR 202.20-f (a) and (b).

"To the maximum extent possible, discovery disputes should be resolved through informal procedures, such as conferences, as opposed to motion practice" (22 NYCRR 202.20-f [a]; Hawkins v City of New York, 237 AD3d 1069, 1069 [2d Dept 2025], quoting 22 NYCRR 202.20-f [a], and citing Bayview Loan Servicing, LLC v Evanson, 230 AD3d 1091, 1092 [2d Dept 2024]). "All discovery motions must include 'an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion' " (Bayview Loan Servicing, LLC v Evanson, 230 AD3d 1091, 1092 [2d Dept 2024], quoting 22 NYCRR 202.7 [a], and citing Muchnik v Mendez Trucking, Inc., 212 AD3d 640, 641 [2d Dept 2023]). "The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions or shall indicate good cause why no such conferral with counsel for opposing parties was held" (22 NYCRR 202.7 [c]; Bayview Loan Servicing, LLC v Evanson, 230 AD3d 1091, 1092 [2d Dept 2024], quoting 22 NYCRR 202.7 [c], and citing Behar v Wiblishauser, 219 AD3d 793, 794 [2d Dept 2023]).

"Failure to provide an affirmation of good faith which substantively complies with 22 NYCRR 202.7 (c) warrants denial of the motion" (Bayview Loan Servicing, LLC v Evanson, 230 AD3d 1091, 1092 [2d Dept 2024], quoting Behar v Wiblishauser, 219 AD3d 793, 794 [2d Dept 2023], citing Winter v ESRT Empire State Bldg., LLC, 201 AD3d 842, 844 [2d Dept 2022]). "Further, in the absence of exigent circumstances, 'prior to contacting the court regarding a disclosure dispute, counsel must first consult with one another,' by an in-person or telephonic conference, in a good faith effort to resolve all discovery disputes (22 NYCRR 202.20-f [b]; Bayview Loan Servicing, LLC v Evanson, 230 AD3d 1091, 1092 [2d Dept 2024], quoting 22 NYCRR 202.20—f [b]). "In the event that a discovery dispute cannot be resolved other than through motion practice, each . . . discovery motion shall be supported by an affidavit or affirmation from counsel attesting to counsel having conducted an in-person or telephonic conference, setting forth the date and time of such conference, persons participating, and the length of time of the conference" (Bayview Loan Servicing, LLC v Evanson, 230 AD3d 1091, 1092 [2d Dept 2024], quoting 22 NYCRR 202.20—f [b]).

Here, the movant's affirmation did not attest to conducting an in-person or telephonic conference with the plaintiff or plaintiff's counsel to resolve the discovery dispute. This branch of the motion is therefore denied.

Precluding the Plaintiff Pursuant to CPLR 3124

The movant seeks an order precluding the plaintiff and his counsel, Kristian K. Larsen, Esq. from serving, filing, noticing, further claims, applications, deposition demands, discovery demands, or personal-liability allegations against the movant unless and until the plaintiff first demonstrates, by admissible proof and further order of this Court, plaintiff's present legal capacity, standing, or authority and a legally sufficient basis for proceeding against the movant individually.

This branch of the movant's motion is premised on the incorrect assumption that the plaintiff has a burden to prove his capacity to maintain and prosecute the instant action. At this stage of the proceedings, the plaintiff has no such burden. There is therefore no basis for precluding the plaintiff from continuing to prosecute the instant action against the movant.

CONCLUSION

The branch of the motion by defendant Kevin D. Greene for an order dismissing the claims asserted against him pursuant to CPLR 3211 (a) (1), CPLR 3211 (a) (3), CPLR 3211 (a) (7), and CPLR 3212 is denied.

The branch of the motion by defendant Kevin D. Greene for an order determining that the plaintiff Kevin B. Greene has not demonstrated standing is denied.

The branch of the motion by defendant Kevin D. Greene for an order directing that the plaintiff Kevin B. Greene produce proof of his capacity denied.

The branch of the motion by defendant Kevin D. Greene for an order pursuant to CPLR 3123 deeming admitted certain facts contained in a notice to admit is denied.

The branch of the motion by defendant Kevin D. Greene for an order pursuant to CPLR 3124 compelling the plaintiff Kevin B. Greene to provide certain discovery pertaining to the plaintiff's capacity is denied.

The branch of the motion by defendant Kevin D. Greene for an order pursuant to CPLR 3124 precluding the plaintiff Kevin B. Greene from prosecuting the instant action for failing to provide certain discovery pertaining to the plaintiff's capacity is denied.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.

FOOTNOTES

1.   The affirmation in support refers only to exhibits G, H and I.

2.   The memorandum of law refers only to exhibits H and I.

Francois A. Rivera, J.