Seidenfeld v. Zaltz

162 A.D.3d 929

80 N.Y.S.3d 311

Sheila Berniker SEIDENFELD, appellant,

v.Helene ZALTZ, et al., respondents.

2016–01209

Index No. 28790/10

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

Submitted—January 19, 2018

June 20, 2018

Jeffrey E. Michels, New York, NY, for appellant.

Barry S. Seidel, Forest Hills, NY, for respondents Helene Zaltz and Israel Zaltz.

Leonard R. Sperber, Garden City, N.Y. (Michelle S. Stein of counsel), for respondent Adelle Lawrence.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and to impose a constructive trust, the plaintiff appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated June 3, 2015. The order, insofar as appealed from, upon renewal, in effect, vacated a prior determination in an order of the same court dated June 2, 2014 (Jack M. Battaglia, J.), denying the motion of the defendant Adelle Lawrence for summary judgment dismissing the second amended complaint insofar as asserted against her and denying that branch of the separate motion of the defendants Helene Zaltz and Israel Zaltz which was for summary judgment dismissing the second amended complaint insofar as asserted against them, and thereupon granted the defendants' respective motions.

ORDERED that the order dated June 3, 2015, is affirmed insofar as appealed from, with one bill of costs.

Max and Elsie Rokeach had four children: the plaintiff, Sheila Berniker Seidenfeld, Leonard Rokeach, and the defendants Helene Zaltz and Adelle Lawrence. In 1982, Max died intestate. A primary asset of Max's estate was real property in Brooklyn (hereinafter the Brooklyn property). That property consisted of two living spaces, and a meeting space that was used as a synagogue. One of the living spaces was occupied by Max and Elsie.

In the course of administering Max's estate, the children agreed that Sheila, Leonard, and Adelle would each waive his or her intestate share of Max's estate in favor of their mother, Elsie, in exchange for her promise that she would leave them each 16.5% of the Brooklyn property upon her death. It was further agreed that, because Elsie could not live alone, Helene and her husband Israel Zaltz (hereinafter together the Zaltzes), would occupy the second living space in the Brooklyn property and make improvements to it and that, if they did so until Elsie's death, they would receive the remaining 50% of the property. This understanding was memorialized in a 1986 agreement between Elsie and the Zaltzes, although Sheila, Leonard, and Adelle also signed as interested parties (hereinafter the 1986 agreement). The Brooklyn property was legally held by Elsie and the Zaltzes in 50% shares as tenants-in-common.

In 1996 and 1997, Elsie made 12 deposits of $10,000 each to brokerage accounts. The memo section of each of the checks indicates that they were gifts to Helene, Adelle, or Adelle's sons. According to Sheila, in mid–2005, Adelle and Israel both told her that, upon Elsie's death, a portion of the assets in one brokerage account, which was held in the names of Helene and Adelle, would go to Sheila.

In 2000, Elsie transferred her 50% interest in the Brooklyn property to Helene. In 2002, Helene told Sheila that the purpose of the transfer was to improve Elsie's Medicaid eligibility, but that Sheila and her siblings would nevertheless receive their 16.5% shares of the property upon Elsie's death. In January or February of 2005, Helene sold the Brooklyn property, and she and Israel purchased a home in Lawrence. Elsie moved to an assisted living facility and, in August 2005, she died. Elsie's will did not mention the 1986 agreement, and Helene declined to disburse 16.5% of the proceeds of the sale of the Brooklyn property to Sheila. Helene and Adelle also declined to transfer the proceeds of the brokerage account to Sheila.

In 2009, Sheila, as co-executor of Elsie's estate, commenced a turnover proceeding in the Surrogate's Court, Queens County, to recover the proceeds of the sale of the Brooklyn property and the brokerage accounts. The Zaltzes and Adelle separately moved for dismissal of Sheila's petition. In an order dated August 26, 2010, the Surrogate's Court granted the motions and directed dismissal of Sheila's petition on the ground that each of her causes of action was either time-barred or constituted a dispute between living persons which was not within the jurisdiction of the Surrogate's Court. Sheila appealed that order to this Court, which affirmed the dismissal (see Matter of Rokeach, 101 A.D.3d 1022, 956 N.Y.S.2d 127 ).

In November 2010, Sheila commenced this action against Adelle and the Zaltzes, seeking a share of the Brooklyn property and the proceeds of one of the brokerage accounts. She also alleged that, when Max died, Helene and Adelle told her that the net value of his estate was only approximately $32,000. Sheila alleged that she waived her share of Max's estate in favor of Elsie based on that representation. She claimed that Max's estate actually was worth a far greater amount and that, had she known the true value of the estate, she would not have waived her share of it. Sheila's complaint, and her second amended complaint, which is the subject of this appeal, set forth causes of action, inter alia, sounding in breach of contract, quasi-contract, conversion, and fraud, and to impose a constructive trust.

Adelle and the Zaltzes separately moved for summary judgment dismissing the second amended complaint insofar as asserted against each of them. In an order dated June 2, 2014, the Supreme Court denied both motions on the ground that they were technically deficient, with leave to renew. Adelle and the Zaltzes separately moved for leave to renew the respective motions. In an order dated June 3, 2015, the court granted leave to renew, and, upon renewal, found that the majority of Sheila's causes of action were barred by the doctrine of res judicata based upon the previous decisions of the Surrogate's Court and this Court. To the extent that the causes of action were not barred by res judicata, the court determined that they were barred by the applicable statutes of limitations and, in any case, were without merit. The court therefore directed dismissal of the second amended complaint in its entirety. Sheila appeals.

The doctrine of res judicata, or claim preclusion, provides that "a valid final judgment bars future actions between the same parties on the same cause of action" ( Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647 ; see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 ; Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 ). In general, a judgment for or against a person in his or her representative capacity is not res judicata against that person in his or her personal capacity (see Matter of Sullivan, 289 N.Y. 323, 326, 45 N.E.2d 819 ; Leonard v. Pierce, 182 N.Y. 431, 432, 75 N.E. 313 ; Magid v. Sunrise Holdings Group, LLC, 155 A.D.3d 717, 718, 64 N.Y.S.3d 63 ; Specialized Realty Servs., LLC v. Maikisch, 123 A.D.3d 801, 802, 999 N.Y.S.2d 430 ). However, where a litigant's individual interests are affected by prior litigation in which he or she participated in a representative capacity, res judicata will apply to a subsequent action commenced in the individual's personal capacity (see Matter of Clamp, 193 A.D.2d 601, 602, 597 N.Y.S.2d 163 ; Weiner v. Greyhound Bus Lines, 55 A.D.2d 189, 193–194, 389 N.Y.S.2d 884 ).

Here, although Sheila's turnover proceeding in the Surrogate's Court was ostensibly brought on behalf of Elsie's estate, had she prevailed, Sheila, in her personal capacity as an heir of Elsie's estate, would have been the primary beneficiary of the proceeding. The purpose of the turnover proceeding was to return to the estate assets that had been disbursed to other family members prior to Elsie's death, which would have increased Sheila's share in Elsie's estate. As this Court stated on the prior appeal, the petition sought to recover Elsie's interest in the Brooklyn property and the assets she had transferred to the brokerage accounts (see Matter of Rokeach, 101 A.D.3d at 1023, 956 N.Y.S.2d 127 ). We noted that Sheila sought the turnover based on, inter alia, "theories of fraud, conversion, and constructive trust," the same theories she has pleaded in this action ( id. at 1025, 956 N.Y.S.2d 127 ). Although Sheila commenced that proceeding in a representative capacity, it was primarily her own individual interests that would have been affected had she prevailed, and her claims in that action were substantially the same as those she asserts here. Accordingly, we agree with the Supreme Court's determination that the doctrine of res judicata applied to bar the first and fourth through eleventh causes of action to the extent they were asserted in and decided by the Surrogate's Court and this Court (see Matter of Clamp, 193 A.D.2d at 602, 597 N.Y.S.2d 163 ; Weiner v. Greyhound Bus Lines, 55 A.D.2d at 193–194, 389 N.Y.S.2d 884 ).

To the extent that the causes of action were not barred by res judicata, the Supreme Court correctly determined that they were time barred and/or that Sheila failed to state a viable cause of action.

The first through seventh causes of action related to Sheila's claim that she was entitled to a share of the proceeds from the sale of the Brooklyn property. The first and second causes of action sound in breach of contract, and the seventh cause of action alleging unjust enrichment is quasi-contractual. Each of these claims is based upon the 1986 agreement. However, the 1986 agreement did not expressly or impliedly create any contractual obligation between Helene and any of her siblings. The duties ran to and from Elsie and her children, but not between the children, and Helene undertook no duty to...