FILED: NEW YORK COUNTY CLERK 12/28/ :43 PM INDEX NO /2017

Transcription

1 ,...-, , SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LAURA CICCOTTO, individually and as Executor of Index No /2017 the Estate of Ciccotto, Anthony L. Ciccotto, a/k/a Anthony Louis - against - Plaintiff, Oral Argument Requested LOUIS CICCOTTO and ANGELO CICCOTTO, individually and as Co-Trustees of The Gina Ciccotto 1996 Trust; ANTOINETTE CICCOTTO; and 83 NASSAU CORP. Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS LOUIS CICCOTTO, ANGELO CICCOTTO, AND ANTOINETTE CICCOTTO'S MOTION FOR SUMMARY JUDGMENT AND ANTOINETTE CICCOTTO'S MOTION TO DISMISS GALLET DREYER & BERKEY, LLP 845 Third Avenue - 5th Floor New York, NY (212) Attorneys for Defendant Of Counsel: Kenneth Rubinstein c

2 , , ,...-, , NYSCEF DOC. NO RECEIVED NYSCEF: 12/28/ /19/2017 TABLEOFCONTENTS TABLE OF AUTHORITIES PRELIMINARY STATEMENT...1.I STATEMENT OF FACTS...1 ARGUMENT...3 POINT ONE...3 THE MOVING DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE ANTHONY'S WILL DEVISES THE PROPERTY TO HIS CO- OWNERS, ANGELO AND LOUIS...3 POINT TWO...5 PLAINTIFF HAS FAILED TO PLEAD A CAUSE OF ACTION FOR UNJUST ENRICHMENT AGAINST ANTOINETTE...5 CONCLUSION j 1 fl

3 Ma\a' ,...-, , TABLE OF AUTHORITIES Cases Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533 (1991)...3 Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974)...3. Curtis v. Properties Corp. v. Gretf Co., 212 A.D.2d 259, 263 (1st Dep't 1995)...3 Estate of McKenna, 114 Misc. 2d 304, 308 (Surr. Ct. Bronx Co. 1982) Georgia Malone...6 Georgia Malone & Co. v. Rieder, 19 N.Y.3d 511, 516 (2012)...5, 6 In re Estate of Singer, 13 N.Y.3d 447, 451 (2009) In re Gautier's Will, 3 N.Y.2d 502, 508 (1957)...4 Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011)...5, 6 Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421 (1972)...5 Plumbing Corp. v. Born to Build Const. Corp., 137 A.D.3d 976, 205 (2d Dep't 2016) Sperry v. Crompton Corp., 8 N.Y.3d 204, (2007)...5 Taggart v. Murray, 53 N.Y. 233, 236 (1873)...4 Williams v. Williams, 36 A.D.3d 693, 694 (2d Dep't 2007)

4 , , - -, , Defendants Louis Ciccotto, Angelo Ciccotto, and Antoinette Ciccotto (collectively, Defendants" "the Moving Defendants") submit this memorandum of law in support of their motion for summary judgment under CPLR 3212 and in support of Antoinette's motion to dismiss under CPLR 321l(a)(7). PRELIMINARY STATEMENT Anthony Ciccotto died in September, In his will, he left his one-third interest "Property" in a parcel of Manhattan real estate (the "Property") to his "co-owners," namely, his sons, defendants Angelo Ciccotto and Louis Ciccotto. Anthony's widow, plaintiff Laura (" Plaintiff' Ciccotto ("Plaintiff"), successfully petitioned for probate of the will. Nonetheless, Plaintiff now claims that she owns Anthony's one-third interest in the Property. These claims are barred by the express terms of the will and the Moving Defendants are entitled to summary judgment dismissing this action in its entirety. Plaintiff's unjust enrichment claim against Angelo and Louis's mother, Antoinette Ciccotto, must also be dismissed under CPLR 3211(a)(7). Plaintiff has not alleged any relationship with Antoinette, let alone a relationship that could cause reliance or inducement, as necessary to sustain a cause of action for unjust enrichment. STATEMENT OF FACTS On July 31, 1996, Gina Ciccotto, placed in trust a parcel of Manhattan real estate at "Trust" 115 Lexington Avenue (the "Trust"). The trust term was five years "or the earlier death of the Grantor." If Gina was alive at the expiration of the trust term, the trustee was to divide the Property into three equal shares and hold one share for five years in further trust for Gina's son, Anthony Ciccotto, and one share each for Anthony's two sons, Angelo Ciccotto and Louis Ciccotto, until each reached the age of thirty-five. 1

5 OI~W' , --, , The original trustee was Philip Curto. He resigned in 1999, and Anthony, Angelo, and Lewis took were appointed successor trustees. Gina died on September 30, Anthony died on September 7, In his will, executed on October 9, 2012, Anthony made a general gift to Plaintiff. However, Anthony devised his "right, title, and interest" in any property of which he was, at his death, a co-owner, to the surviving coowner: If, at the time of my death, I am a joint owner, co-owner, or owner of any real estate, personal property, bank account or savings account in any commercial bank or savings institution, bond, or any security or instrument of indebtedness, which is registered or issued in my name and that of another person or persons as trustee for such other person, or as tenants by the entirety, or as joint tenants with right of survivorship, or which is payable to either the co-owner or the survivor, I devise all my right, title, and interest in any such property to the surviving joint owner, co-owner, or beneficiary thereof. It is my understanding that all right, title, and interest in any such property will pass to such surviving joint owner, co-owner, or beneficiary upon my death by operation of law, but I do nevertheless make these provisions in order to eliminate any question as to the right of any such surviving joint owners, co-owners, or beneficiaries to succeed to the ownership of such property upon my death and to provide for the possibility that a true joint tenancy with right of survivorship or such trust provisions were not created during my lifetime. (Last Will and Testament of Anthony Ciccotto, Article X. Exhibit 3 to Affidavit of Louis Ciccotto.) Plaintiff petitioned successfully for the probate of Anthony's will in Florida. She also brought an ancillary proceeding in Surrogate's Court, New York County. New York Surrogate's Court issued ancillary letters on February 21, Notwithstanding the clear terms of the will, Plaintiff commenced this proceeding against Louis and Angelo, individually and as co-trustees of the Trust, and against Antoinette, and 83 Nassau Corp., which holds a lease on the Property. The Complaint 2

6 , - -, , asserts causes of action for determination of a claim to real property under RPAPL Article 15, for a declaratory judgment, for cancellation of the deed, for an accounting, for breach of trust, for breach of fiduciary duty, and for unjust enrichment. ARGUMENT POINT ONE THE MOVING DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE ANTHONY'S WILL DEVISES THE PROPERTY TO HIS CO-OWNERS, ANGELO AND LOUIS. The undisputable documentary evidence - namely, the plain text of the will that Laura successfully petitioned to probate - demonstrates that the Moving Defendants are entitled to summary judgment in their favor as to each of Plaintiff's causes of action. CPLR 3212(b) provides that: [A summary judgment] motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the Court as a matter of law in directing judgment in favor of any party. Summary judgment is warranted when there is no genuine issue of material fact sufficient to require a trial. Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); see Curtis v. Properties Corp. v. Greif Co., 212 A.D.2d 259, 263 (1st Dep't 1995) (summary judgment appropriate where case presents question of law regarding interpretation and application of written agreement). In order to overcome a motion for summary judgment, the party opposing summary judgment must produce admissible evidentiary proof sufficient to establish a material question of fact. Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533 (1991). Here, each of Plaintiff's causes of action derive from Plaintiff's claim that she owns a one-third interest in the Property. However, as the plain text of the will makes 3

7 , ,...-, , clear, Anthony left his interest in the Property not to Plaintiff but to his sons, Angelo and Louis. "The paramount consideration in will construction... is the testator's intent." In re Estate of Singer, 13 N.Y.3d 447, 451 (2009); In re Gautier's Will, 3 N.Y.2d 502, 508 (1957); Williams v. Williams, 36 A.D.3d 693, 694 (2d Dep't 2007). "It is also 'a primary rule in the construction of wills, that effect is to be given if possible to all provisions, and no clause is to be rejected, and no interest intended to be given is to be sacrificed on the ground of repugnancy when it is possible to reconcile the provisions which are supposed to be in conflict.'" Id. (quoting Taggart v. Murray, 53 N.Y. 233, 236 (1873)); see Estate of (" McKenna, 114 Misc. 2d 304, 308 (Surr. Ct. Bronx Co. 1982) ("It is a basic rule of construction that to as great an extent as possible meaning should be given to all aspects of the provisions found in a testamentary instrument."). Article X of the will devises "all [Anthony's] right, title, and interest" in any property, including "any real estate," of which he is at his death a "joint owner" or "coowner" to "the surviving joint owner, co-owner, or beneficiary." This provision is not susceptible to conflicting interpretation. It means that Anthony devised his interest in the Property to his co-owners, who, indisputably, are his sons, Angelo and Louis. Pursuant to the documentary evidence, they, and not Laura, own the one-third interest in the Property formerly owned by Anthony. Accordingly, summary judgment must be granted to the Moving Defendants dismissing each of Plaintiff's causes of action. 4

8 am ~~~ , , - -, , POINT TWO PLAINTIFF HAS FAILED TO PLEAD A CAUSE OF ACTION FOR UNJUST ENRICHMENT AGAINST ANTOINETTE. Plaintiff's only allegation against Antoinette is that, "upon information and belief, Defendants Louis and Angelo failed to make all distributions of income, rent and profits from the Trust which [Plaintiffj is entitled to, and instead, monies belonging to [Plaintiffj and previously to Anthony, are being retained by Louis and Angelo, or given to their mother, Antoinette." Complaint 76 (emphasis added). Based on this allegation, Plaintiff alleges that Antoinette has been unjustly enriched. However, Plaintiff has not alleged any relationship between herself and Antoinette, let alone the type of relationship sufficient to cause reliance or inducement. Absent allegations of such a relationship, Antoinette's claims against Plaintiff must be dismissed under CPLR 3211(a)(7). "The essential inquiry in any action for unjust enrichment... is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered." Mandarin Trading Ltd v. Wildenstein, 16 N.Y.3d 173, 182 (2011) (quoting Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421 (1972)). To make out a cause of action, a plaintiff must show "that (1) the other party was enriched, (2) at [the plaintiff's] expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sort to be recovered." Id. In a series of cases, the Court of Appeals has held that "a plaintiff cannot succeed on an unjust enrichment claim unless it has a sufficiently close relationship with the [defendant]." Georgia Malone & Co. v. Rieder, 19 N.Y.3d 511, 516 (2012); Mandarin Trading, 16 N.Y.3d at 182; Sperry v. Crompton Corp., 8 N.Y.3d 204, (2007). 5

9 ~ W~~~ ~%~ ~~ 4 %K~ %4% ~MV'A ~ & 4 ~ % W W \ ~ & M 4 A 4 "Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated." Mandarin Trading, 16 N.Y.3d at 182. "[T]here are no indicia of an enrichment that was unjust where the pleadings failed to indicate a relationship between the parties that could have caused reliance or inducement." Id.; JP. Plumbing Corp. v. Born to Build Const. Corp., 137 (" A.D.3d 976, 205 (2d Dep't 2016) ("There can be no enrichment that is unjust where there is no relationship that causes reliance or inducement."). The failure to allege such a relationship at the pleading stage warrants dismissal. Mandarin Trading, 16 N.Y.3d at 183; Georgia Malone, 19 N.Y.3d at 513. Here, Plaintiff alleges nothing more than that Antoinette may have been the innocent recipient of funds that allegedly belonged to Plaintiff. Plaintiff does not allege that she and Antoinette, or Anthony and Antoinette, were parties to a transaction, or cotrustees, or were otherwise connected by a relationship that could have caused reliance or inducement. Plaintiff has simply failed to allege sufficient facts to support a claim for unjust enrichment against Antoinette. Georgia Malone is instructive. In that case, a real estate broker purchased due diligence reports prepared by a rival broker for a developer, not knowing that the developer had never paid the rival broker for the reports. The real estate broker then made use of the reports in obtaining a purchaser for the property. The rival broker sued for unjust enrichment. The Court dismissed the rival broker's cause of action for unjust enrichment, holding that "the relationship [between the two brokers] is too attenuated because they simply had no dealings with each other." Georgia Malone, 19 N.U. 3d 511 (Emphasis added). 6

10 ' ,...-, , Plaintiff's cause of action against Antoinette for unjust enrichment should be dismissed. CONCLUSION For the reasons stated above, summary judgment should be entered in favor of the Moving Defendants as to all of Plaintiff's causes of action. In the alternative, the complaint should be dismissed in so far as asserted against Antoinette Ciccotto. Dated: New York, New York October 19, 2017 GALLET DREYER & BE, LLP, C By Kenneth Rubinstein 845 Third Avenue - 5th Floor New York, NY (212) dlb@gdblaw.com Attorneys for Defendants Louis Ciccotto, Angelo Ciccotto, and Antoinette Ciccotto DOCX 7