Tawil v. Tawil

2021 NY Slip Op 32771(U)

Charles C. Tawil, Plaintiff, v. Habib Tawil, Richard S. Finkelstein, Albert Rosenhaus, Michael Bernstein, Albert Dweck, Edward Wipper, Darren Oved, Oved & Oved LLP, and Berkowitz, Lichtstein, Kuritsky, Giasulio & Gross LLC, Defendants.

Index No. 525349/20

Supreme Court, Kings County

December 13, 2021

Unpublished Opinion

PRESENT: HON. CAROLYN E. WADE, Justice.

Carolyn E. Wade, Judge

The following e-filed papers read herein: NYSEF Doc Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) ___ 11-21 24-25 27-33

Opposing Affidavits (Affirmations) ___ 35 37-39

Reply Affidavits (Affirmations) ___ 49-51

Sur Reply ___ 43-45

Upon the foregoing papers, plaintiff Charles C. Tawil (Charles) moves (in motion sequence [mot. seq.] two) for an order pursuant to CPLR 3215, granting him a default judgment against defendant Habib Tawil (Habib), and ordering an inquest on damages.

Defendant Habib moves (in mot. seq. three) for an order, pursuant to CPLR 3211 (a) (4) and (a) (7), ^[1] dismissing the claims asserted against him in the amended complaint (the first through fourth causes of action).

Defendants Richard S. Finkelstein (Finkelstein) and Berkowitz Lichtstein, Kuritsky, Giasullo & Gross LLC (incorrectly sued herein as Berkowitz, Lichtstein, Kuritsky, Giasulio & Gross LLC) (collectively, the BLKGG Defendants) move (in mot. seq. four) for an order, pursuant to CPLR 3211 (a) (7), dismissing the claims asserted against them in the amended complaint (the fourth through the seventh causes of action).

Background

Plaintiff Charles and defendant Habib are brothers and each is a fifty percent (50%) beneficiary of a trust under the will of the Alphonse Tawil Family Trust (Family Trust) and the Irrevocable Joint Life Insurance Trust (Insurance Trust). Habib was appointed executor of Charles and Habib's parents' wills and co-trustee of the testamentary Family and Insurance Trusts created thereunder. The management of the estate assets has been a source of conflict between the brothers, and defendants contend that there is pending litigation in Monmouth County Chancery Court in New Jersey in which Habib, as executor on behalf of his father's estate, seeks accountings of the assets of the Insurance and the Family Trusts. The BLKGG Defendants were former counsel to the Insurance and Family Trusts.

On December 17, 2020, Charles commenced this action by filing a summons and a verified complaint. On January 28, 2021, the BLKGG Defendants moved to dismiss the original complaint which motion was subsequently withdrawn.

Meanwhile on February 17, 2021, Charles filed the first amended verified complaint alleging that defendants engaged in "a deliberate and relentless campaign to financially and emotionally cripple [him] and cause [him] severe suffering and hardship" and "a longstanding campaign of deliberate, systematic, and malicious harassment... to withhold and deprive [him of] monies, real property, personal property, financial information and insurance proceeds bequeathed to [him] pursuant to the Insurance Trust and the Family Trust" (amended complaint at ¶¶ 15-23).

Allegedly, in March 2020, Charles, who was living with his elderly aunt, was forced to move out due to health concerns brought on by the COVID-19 pandemic. After living inside his vehicle for four days, Charles allegedly accepted an invitation from Habib to stay at his house. Hours into Charles' stay, however, Habib revealed that his wife may have COVID-19. Charles allegedly took shelter in their parents' former residence in Deal, New Jersey (Deal House), which was vacant and an asset of the Family Trust to which Charles was a beneficiary. Habib allegedly contacted the Deal water department, advised them that Charles was a squatter at the Deal House and had the water shut off. Additionally, Habib allegedly called the Deal Police Department and accused Charles of trespassing and burglary at the Deal House, for which Charles was criminally charged.

The amended complaint alleges that the foregoing incidents are the most recent in a long history of events causing Charles extreme emotional stress, which started more than a decade ago when the parties' mother, Marcelle (Marcy), was still alive. The amended complaint alleges that the parties'"mother had dementia and was therefore, unable to execute binding paperwork, but Habib fraudulently obtained a power of attorney. The amended complaint also claims that Habib recklessly managed and gambled away their mother's assets, failed to provide her with basic care and allowed her to die in her own filth and blood covered in bedsores. Annexed as Exhibit A to the amended complaint is a June 25, 2009 Deal Police Report of a "welfare check on elderly female[, ]" Marcy Tawil, the "victim" at 63 Roosevelt Avenue in Deal, New Jersey (the Deal House), based on a report of neglect by Charles. The Deal Police Report described that:

"FURTHER INVESTIGATIONS REVEALED NO GAS FOR COOKING, NO TELEPHONE & NO WATERSERVICE FOR THE BATH, OR DRINKING WATER. THERE WERE FECES & URINE STILL SITTING IN THE OTHER TOILETS. ... I ADVISED MR. TAWIL [OF] HIS MOTHER'S CONDITION & THE DEPLORABLE CONDITIONS WITHIN THE HOME...."

The amended complaint alleges that, although Habib had a duty to coordinate care for their mother, he refused to pay for proper services and their mother suffered as a result. Charles allegedly suffered emotionally because he was not allowed access to estate assets and was unable to rescue his mother and pay for her care.

The amended complaint also alleges that Habib and the estate attorneys executed false real estate transfers and banking transactions to divert and diminish the value of the estate assets, including a transfer of the Deal Home from the estate attorneys to Habib in 2011 for $1.00 and the sale of another property whose sale proceeds are unaccounted for. In addition, the amended complaint provides that Habib terminated Charles' family's medical insurance by stopping the payments that were being made by the estate and, consequently, Charles' wife was unable to consult a doctor after she was involved in a car accident in 2021 and she lost sight in one eye.

The amended complaint asserts the following ten causes of action: (1) the first cause of action against Habib for prima facie tort; (2) the second cause of action against Habib for intentional infliction of emotional distress; (3) the third cause of action against Habib for negligent infliction of emotional distress; (4) the fourth cause of action against Habib, Finkelstein, Edward Wipper, Darren Oved, Oved & Oved LLP and the BLKGG Defendants for fraud; (5) the fifth cause of action against defendants Edward Wipper, Darren Oved, Oved & Oved LLP and the BLKGG Defendants for aiding and abetting Habib's prima facie tort; (6) the sixth cause of action against defendants Edward Wipper, Darren Oved, Oved & Oved LLP and the BLKGG Defendants for aiding and abetting intentional infliction of emotional distress; (7) the seventh cause of action against defendants Edward Wipper, Darren Oved, Oved & Oved LLP and the BLKGG Defendants for aiding and abetting negligent infliction of emotional distress; (8) the eighth cause of action against defendants Albert Rosenhaus, Michael Bernstein and Albert Dweck for aiding and abetting prima facie tort; (9) the ninth cause of action for against defendants Albert Rosenhaus, Michael Bernstein and Albert Dweck for aiding and abetting intentional infliction of emotional distress; and (10) the tenth cause of action against defendants Albert Rosenhaus, Michael Bernstein and Albert Dweck for aiding and abetting negligent infliction of emotional distress.

Charles' Motion for a Default Judgment

On February 10, 2021, Habib's attorney appeared in New York County Supreme Court on another related matter, ^[2] at which time he agreed, in open court, that he would accept service of process on behalf of Habib in this action. It is undisputed that defense counsel received an email from Charles' counsel with the amended complaint on February 18, 2021, one day after Charles electronically filed the amended complaint.

On March 22, 2021, Charles moved for a default judgment against Habib for his alleged failure to timely answer the amended complaint or otherwise appear in this action. Charles' counsel argues that March 20, 2021 was the deadline for Habib to answer the amended complaint or otherwise appear under the CPLR.

Habib, in opposition, submits an attorney affirmation asserting that a hard copy of the amended complaint was never mailed to his office. Defense counsel argues that because the 30-day deadline within which to respond to the amended complaint technically fell on Saturday, March 20, 2021, the deadline was extended to the next business day by operation of law, which was Monday, March 22, 2021, the date on which Habib timely moved to dismiss the amended complaint.

Habib 's Dismissal Motion

On Monday March 22, 2021, Habib electronically filed a motion to dismiss the amended complaint, pursuant to CPLR 3211 (a) (4) and (a) (7), on the ground that it fails to state a cause of action and other actions are pending regarding the Insurance and Family Trusts in New Jersey.

Habib's dismissal motion is based on a two-page affirmation from his counsel asserting that "[disputes over the [testamentary] trusts' management have led to significant litigation between the parties in New Jersey." Defense counsel affirms that there are two litigations pending in the Chancery Division of the Monmouth County Superior Court in New Jersey regarding the Insurance Trust and the Family Trust, which are docketed as MON-P-383-19/Surrogate's No 258662 and MON-P-360-20- 20/Surrogate's No. 213003,...