Richard Colgan, Plaintiff v. Jeanine Colgan, Defendant (2026)

Before the court in this miscellaneous proceeding is a motion to dismiss in lieu of answer and to cancel and discharge the lis pendens filed by Jeanine Colgan (Jeanine), the defendant in a proceeding commenced by her brother, Richard Colgan (Richard) as plaintiff, relating to a piece of real property located at 331 Mineola Boulevard, Mineola, New York (the Property).

Jeanine and Richard are the surviving children of Helen Colgan (the decedent), who died on September 14, 2025. The decedent executed a trust dated June 27, 2025, with herself as grantor and as trustee (the Trust). By deed dated June 27, 2025, the decedent transferred the Property to the Trust.

The terms of the Trust provide at Article Seven that upon the decedent's death, the "residuary trust estate" shall be paid 100% to Jeanine. The Trust also provides that, if the decedent became incapacitated or upon her death, Jeanine would serve as trustee of the Trust. In addition, the Trust specifically recites that the decedent was disinheriting Richard and his descendants for "reasons best known to" him. The decedent also executed a will on June 27, 2025 (the Will). The Will directed that the decedent's entire probate estate would be distributed to the trustee of the Trust to be held, administered, and disposed of pursuant to the terms of the Trust.

By Summons and Complaint dated December 17, 2025, Richard commenced an action against Jeanine in the Supreme Court of Nassau County. Richard alleged that the decedent died without a will, and at the time of her death, she was the owner of and lived at the Property. Jeanine was attempting to sell the Property. Richard further claimed that the decedent died intestate and that the Property and all other assets compromising the decedent's estate should be divided equally between him and Jeanine. In connection with the action, Richard filed a lis pendens against the Property, which was recorded on December 22, 2025. Thereafter, Jeanine moved by order to show cause to dismiss the proceeding and to cancel the lis pendens. By Order dated February 4, 2026, the matter was transferred to the Surrogate's Court.

By petition dated October 9, 2025, Jeanine, as the nominated executor under the Will, filed a petition to probate the Will and for the issuance of letters testamentary to her. Citation has issued in the probate proceeding and Richard conducted SCPA 1404 examinations.

THE MOTION TO DISMISS

Jeanine now moves to dismiss the complaint pursuant to CPLR § 3211 (a)(1), (7) and (8). "Under CPLR § 3211 (a) (1), a dismissal is warranted only if the documentary evidence conclusively establishes a defense to the asserted claims as a matter of law" (Leon v. Martinez 84 NY2d 83, 88 [1994]). A motion to dismiss pursuant to CPLR § 3211 (a)(1) may be granted if "documentary evidence utterly refutes [the] plaintiff's factual allegations , thereby conclusively establishing a defense as a matter of law" (Whitebox Concentrated Convertible Arbitrage Partners, LP v. Superior Well Services, Inc., 20 NY3d 59, 63 [2012]). "To be considered documentary, evidence must be unambiguous and of undisputed authenticity" (Fontanetta v. John Doe 1, et al., 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" (Fontanetta, 73 AD3d at 84-85).

A motion to dismiss for failure to state a cause of action under CPLR § 3211 (a)(7) requires the court to accept all of the factual allegations in the complaint as true and draw all inferences favorably to a plaintiff. The pleading is to be liberally construed. Further, on a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211(a)(7), "[t]he complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (Cantor v. Villucci, 212 AD3d 765, 766 [2d Dept 2023] [internal quotation marks omitted]).

"Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Katz v. DePaola, 211 AD3d 1020, 1021 [2d Dept 2022] [internal quotation marks omitted]). Nevertheless, "conclusory allegations--claims consisting of bare legal conclusions with no factual specificity--are insufficient to survive a motion to dismiss" (Godfrey v. Spano, 13 NY3d 358, 373 [2009]). Jeanine also moves to dismiss on the ground of lack of jurisdiction claiming she was not properly served with the Summons and Complaint.

THE LIS PENDENS

"A notice of pendency, commonly known as a 'lis pendens,' can be a potent shield to protect litigants claiming an interest in real property. The powerful impact this device has on the alienability of property, when conjoined with the facility with which it may be obtained, calls for its narrow application to only those lawsuits directly affecting title to, or the possession, use or enjoyment of real property" (5303 Realty Corp. v. O&Y Equity Corp., 64 NY2d 313, 315 [1984]). "The authority and requirements for securing a valid notice of pendency against real estate are set forth in CPLR Article 65" (5303 Realty Corp. at 317-318). Courts have noted that the concept of a lis pendens impacts the "alienability of real property without any prior judicial review" (5303 Reality Corp., 64 NY2d at 320). A court's scope of review on a motion to cancel a lis pendens is "circumscribed" (Id.). As the Court of Appeals noted "there is little a court may do to provide relief to the property owner" (Id.). Pursuant to Article 65, if the procedures for filing a notice of pendency have not been followed, then the notice must be canceled; however, if the action has not been commenced or prosecuted in good faith, then the notice may be canceled. Even if the notice of pendency is valid, the court may cancel the notice but require the movant to file a bond (Id.; see also Matter of Tschernia, 18 Misc 3d 1129(A) [Sur Ct, Nassau County 2008]). "Where there are no allegations in the complaint which would bring the action within the class of those which affect the title to real property, a mere demand for a judgment which is entirely foreign to the cause of action alleged would not justify the plaintiff in filing the notice" (Behrens v. Sturges, 121 746, 748 [1st Dept 1907]).

Moreover, courts have noted that "[t]he same considerations that require strict compliance with the procedural prerequisites also mandate a narrow interpretation in reviewing whether an action is one affecting 'the title to, or the possession, use or enjoyment of real property' " (5303 Realty Corp., 64 NY2d at 321). Indeed, "[t]he courts have been frequently confronted by attempts to file a notice of pendency in controversies that more or less referred to real property, but which did not necessarily seek to directly affect title to or possession of the land. In the absence of this direct relationship, the remedy was denied" (Id.).

ARGUMENTS

Jeanine argues that the proceeding should be dismissed because the decedent did not own the Property at the time of death since the Property had been transferred to the Trust. Accordingly, she asserts that the basis of Richard's claim, specifically that the Property passed by intestacy, is false and that, as trustee, she has the right to sell the Property. Jeanine also argues that the notice of pendency was wrongly filed against the Property. Moreover, she claims that as trustee she entered into a contract of sale to sell the Property and that the notice of pendency is impeding the sale and distribution of the Trust property.

Richard opposes the motion and asks that the court allow him to amend his Complaint and to allow discovery to be undertaken prior to a determination by this court. According to Richard, the purpose of his commencing the instant action "is to prevent the sale of his home " Richard argues essentially that Jeanine was instrumental in his mother disinheriting him. Richard further claims that he was unaware that there was a will despite his attempts to find out if there was a will. He asserts that "[i]n light of the significant prejudice to plaintiff, the unavailability of documents to properly review, and the timing of the new estate documents purportedly executed shortly before the parties' mother's death, plaintiff asks that the defendant's motion be denied."

Richard also disputes that Jeanine was not properly served and annexes a copy of the affirmation of service asserting that Jeanine was personally served on December 30, 2026 at 5:59 p.m.

ANALYSIS

The crux of Richard's complaint is that he has an interest in the Property because the decedent died without a will and therefore he has a one-half interest through intestacy. Richard's complaint is based upon the material fact that the decedent died without a will, which is not a "fact at all." The facts alleged in Richard's Complaint do not fit within any cognizable legal theory. The Property was transferred by the decedent to the Trust, and title to the Property is held by the Trust. Even affording Richard a liberal reading of his Complaint, Richard has no interest in the Property, as the fiduciary of the decedent's estate has the right to sell the Property even under intestacy.

In Matter of Fello (88 AD2d 600 [2d Dept 1982], affd 58 NY2d 999 [1983]), a residuary beneficiary of the decedent's estate attempted to set aside a contract for the sale of real property entered into by the decedent's executor. The court noted that the property was not specifically devised under the will and that the will provided that the executor had all powers under the law of the State of New York. The court held that the executor had the power to sell the property. Moreover, the court held that the petitioner's election to take the property in kind did not bar a sale by the executor because in order to extinguish the executor's power of sale, all of the residuary beneficiaries must unequivocally agree to take the property in kind, which they failed to do. The court concluded that "[a]bsent a timely election to take the property in kind by both residuary beneficiaries, the executor had a valid power of sale" (Fello, 88 AD2d at 771; see also Matter of Southwick, 127 AD2d 662, 663 [2d Dept 1987], appeal denied 69 NY2d 611[1987]] ["In order for such an election to bar a sale by an executor it must be unequivocally and timely exercised by all of the interested beneficiaries"]).

Here, Richard was specifically disinherited under the Trust and under the decedent's Will. To date, Richard has not commenced a proceeding to set aside the Trust and objections, if any, to the Will are due July 14, 2026. His Complaint is based upon the claim that he has an interest in the Property because his mother died without a will. However, assuming arguendo that the decedent's estate were to pass by intestacy, Jeanine, who would be a beneficiary of the remaining one-half of her mother's estate, does not consent to a distribution of the Property in kind. In Matter of Saviano (NYLJ, Jan. 29, 2007 at 4, col, 4 [Sur Ct, Kings County]), the Surrogate noted that although the decedent's interest in property devolved to the beneficiaries as a matter of law upon the decedent's death, this was "not determinative of the authority of the fiduciary" (Id.). The court stated as follows:

"While the court agrees that title to real property is deemed to pass to the devisee as a matter of law, such devolution is always subjected to the right of the executor to sell real property to pay debts, funeral expenses and administrative expenses. EPTL 11-1.1[b] [5] expressly authorizes an executor to sell real property on such terms as the fiduciary deems beneficial to the estate. [See Matter of Southwick, 127 AD2d 662, 511; N.Y.S. 2d 888 [2nd Dept. 1987]; 6 Tohan, NY Civ Prac EPTL 11-1.1, 11-1.1 [12][9], even if the beneficiary objects (See Matter of Hume, NYLJ, March 26, 2001 at 21, col. 1 [Sur Ct, Westchester County], Matter of Wheeler, NYLJ, May 11, 1999, at 37, col. 6 [Sur Ct, Westchester County]. The question of whether the realty should be sold and under what terms is a matter of business judgment [Matter of Birnbaum, 168 AD2d 933[4th Dept. 1990]."

The documentary evidence, consisting of the Trust and the deed, establish that the Property was transferred to the Trust. In view of the decedent's Will, the Trust and the deed, Richard does not have a cause of action to prevent the sale of the Property. Even if Richard successfully challenges the Trust and the Will, the other intestate distributee, Jeanine, does not consent to the distribution of the Property in-kind. Accordingly, the motion to dismiss is granted pursuant to CPLR 3211(a)(1) and (7). The notice of lis pendens is therefore cancelled, as the proceeding does not directly affect title. Settle decree.

This constitutes the decision and order of the court.

Dated: July 9, 2026

Mineola, New York

E N T E R:

HON. DAVID P. SULLIVAN

Judge of the Surrogate's Court

David P. Sullivan, J.