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Supreme Court, Appellate Division, First Department, New York.

Edith WIENER, an individual partner of Absar Gerard Associates and in her capacity as Co-Executrix of the Estate of Johanna W. Ackerman, Plaintiff-Respondent, v. Laura SPAHN, et al., Defendants-Appellants.

Decided: March 31, 2009

TOM, J.P., SAXE, SWEENY, ACOSTA, FREEDMAN, JJ. Eric Michael Pasinkoff, New York, for Laura Spahn appellant. Heller, Horowitz & Feit, P.C., New York (Stuart A. Blander of counsel), for Chaim Schweid appellant. Novick & Associates, Huntington (Donald Novick of counsel), for respondent.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about August 8, 2008, which denied the motions of defendants' Laura Spahn and Chaim Schweid to dismiss the complaint pursuant to CPLR 3211(a)(1), (3) and (7), unanimously affirmed, without costs.

 Defendants are not entitled to dismissal of the complaint pursuant to CPLR 3211(a)(1), since they have not demonstrated that the documentary evidence definitively resolves all material issues of fact, thereby resulting in the failure of plaintiff's claim as a matter of law (see 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 746 N.Y.S.2d 131, 773 N.E.2d 496 [2002];  Foster v. Kovner, 44 A.D.3d 23, 28, 840 N.Y.S.2d 328 [2007] ). Accepting as true the facts alleged in the complaint for the purpose of the motion, according plaintiff the benefit of every favorable inference, and determining whether the facts as alleged fit any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), we reject the argument that defendant Spahn owned her share of the property individually as a tenant in common, since all of the individual owners transferred their equity interests in the property to a family partnership set up for that purpose.   Spahn allegedly violated the terms of the partnership agreement, which required her to obtain the consent of the remaining partners prior to selling or assigning her interest in the property.

 Defendants are also not entitled to dismissal under CPLR 3211(a)(3), lacks the capacity to sue as co-executrix.   A fiduciary has an obligation to protect the interests of the estate especially where a co-fiduciary is alleged to have acted to the contrary (see SCPA 2102[6];  Matter of Wallens, 9 N.Y.3d 117, 847 N.Y.S.2d 156, 877 N.E.2d 960 [2007];  Birnbaum v. Birnbaum, 73 N.Y.2d 461, 541 N.Y.S.2d 746, 539 N.E.2d 574 [1989];  see also Matter of Donner, 82 N.Y.2d 574, 606 N.Y.S.2d 137, 626 N.E.2d 922 [1993] ).

Finally, dismissal of the complaint was properly denied (see Gro-Up Frocks v. Manners, 55 A.D.2d 531, 389 N.Y.S.2d 107 [1976] ).