THEA v. THEA

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

Donald THEA, et al., Plaintiffs-Appellants, v. Frederica THEA, Defendant-Respondent.

Decided: June 26, 2001

SULLIVAN, P.J., ELLERIN, WALLACH, RUBIN and BUCKLEY, JJ. Cory Mitchell Gray, for Plaintiffs-Appellants. David Jacoby, for Defendant-Respondent.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about September 27, 2000, which granted defendant's motion to dismiss the complaint for failure to state a cause of action and denied plaintiffs' cross motion to compel discovery, unanimously affirmed, with costs.

 Plaintiffs, issue of the first marriage of the late Stanley Thea (the decedent), assert a cause of action for undue influence against defendant, the decedent's third wife and widow, based on the decedent's transfers of funds, while mentally impaired during his final illness, from an Individual Retirement Account (IRA) of which plaintiffs were partial beneficiaries to an IRA of which defendant was sole beneficiary.   The cause of action is not pleaded with sufficient detail to satisfy CPLR 3016(b), since the transfers themselves, which were to the future benefit of the decedent's spouse of 10 years, a natural object of his bounty, and to the detriment of his adult children only, do not, standing alone, give rise to any inference of undue influence (cf., Matter of Elmore, 42 A.D.2d 240, 241, 346 N.Y.S.2d 182;  compare, Matter of Fiumara, 47 N.Y.2d 845, 846, 418 N.Y.S.2d 579, 392 N.E.2d 565).   The cause of action for conversion based on such allegations was also legally insufficient, since plaintiffs had neither legal title to the funds, nor any possessory interest in them, at the time of the transfers, which occurred while the decedent was still alive and had no obligation to treat the funds in any particular manner (see, Bankers Trust Co. v. Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 A.D.2d 384, 385, 590 N.Y.S.2d 201;  Mfrs. Hanover Trust Co. v. Chemical Bank, 160 A.D.2d 113, 124, 559 N.Y.S.2d 704, lv. denied 77 N.Y.2d 803, 568 N.Y.S.2d 15, 569 N.E.2d 874).   The alleged conduct by defendant on which plaintiffs base their cause of action for intentional infliction of emotional distress does not rise to the level of the “ ‘atrocious, and utterly intolerable in a civilized community’ ” (Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86, quoting Restatement [Second] of Torts § 46, comment d;  accord, Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699) required to support such a cause of action.   Finally, plaintiffs are not entitled to an opportunity to conduct discovery based only on the hope that they might thereby obtain some evidence to substantiate their conclusory allegations of undue influence (see, HT Capital Advisors v. Optical Resources Group, 276 A.D.2d 420, 715 N.Y.S.2d 837), and they have not made any showing that they could cure the deficiencies of their complaint by repleading (see, CPLR 3211[e]).