Defendants move pursuant to CPLR 3211(a)(5) to dismiss plaintiff's complaint contending that plaintiff's claims are barred by the applicable statute of limitations and pursuant to CPLR 3211 (a)(7) dismissing plaintiff's causes of action on the ground that said causes fail to state a cause of action.

Plaintiff, the sister of defendant Lenore Monaco, brings this action to recover the value of property described as 797 Southern Boulevard, located in Bronx County, and to impose a constructive trust to prevent defendants from transferring this property.

The complaint, which parenthetically was not verified by the plaintiff, charges plaintiff's sister Lenore Monaco with influencing their mother to transfer the property in Bronx County to her which according to the plaintiff was to be held in trust for the beneficiaries of their mother's estate. Obviously unless plaintiff's undue influence claim is sustained, the court need not pass upon the cause of action for a constructive trust. Moreover, this action initiated here in Bronx County in essence, challenges the testamentary capacity of the decedent, Helen Frankel, plaintiff's mother who transferred the Southern Boulevard property by deed to plaintiff's sister, Lenore Monaco. Plaintiff fails to set forth information regarding whether any of the Wills executed by Helen Frankel were admitted to probate nor does Counsel for plaintiff provide this court with such information.

As previously noted plaintiff's complaint is not verified by plaintiff and in response to defendants' motion to dismiss, plaintiff submits a short affidavit which makes conclusory assertions that adds little to the complaint. Manifestly, plaintiff's counsel's affirmation and his verification of the allegations set forth in the complaint are without probative value. (see Zuckerman c. City of New York 49 NY2d 557, 563, 404 NE2d 718, 720, 427 NYS2d 595, 598.

Defendants in support of their motion to dismiss submit a copy of plaintiff's verified complaint (which only contains verification of plaintiff's attorney), the deed dated February 2, 1998 transferring ownership of the Southern Boulevard property from Helen Frankel, the decedent, to Longwood Properties LLC, a company owned by decedent's daughter Lenore Monaco and her husband, the death certificate of Helen Frankel, the death certificate of Meyer Frankel the father of both plaintiff and defendant Lenore Monaco, the last Will and Testament of [*2]Helen Frankel executed in Florida on September 12, 1991, the Codicil establishing, inter alia, a Inter Vivos Trust to the Will dated February 20, 1992, the Trust Agreement dated October 22, 1992, the Trust Modification and Ratification dated July 25, 2002 and the further modification dated January 24, 2003. Plaintiff does not challenge the authenticity of these documents.

It is well established that summary judgment is warranted where there are no genuine issues of material facts (see Alvarez v. Prospect Hospital 68 NY2d 320, 501 NE2d 572, 508 NYS2d 923; Zuckerman v. City of New York, 49 NY2d 557, 404 NE2d 718, 427 NYS2d 595). Moreover, when faced with a motion to dismiss, the court is required to afford the complaint liberal construction extending every favorable inference to ascertain whether the facts alleged in the complaint fit within any cognizable theory. (1455 Washington Avenue Associates v. Rose & Kiernan Inc., 260 AD2d 770, 771, 687 NY2d 791). See also Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409, 754 NE2d 184, 729 NYS2d 425.

When a motion is made pursuant to CPLR 3211(a)(7) the moving party is asserting that the pleading, which is accorded liberal construction, nevertheless fails to state a cause of action. Subdivision (c) of Rule 3211 permits the introduction of documentary evidence which includes judicial records and documents referable to out of court transactions such as contracts, deeds and wills. Obviously, the above description of what may be considered documentary evidence is not all inclusive but is stated merely to demonstrate the variety of documents which a court may consider when deciding a motion for dismissal pursuant paragraph 3211(a)(7). In the case at bar, defendants are seeking a dismissal of the complaint pursuant to CPLR 3211(a)(7) and consequently the defendants have the burden of demonstrating that the documentary evidence submitted conclusively resolves all factual issues and that plaintiff's claims fail as a matter of law. Here, defendants have sustained their burden for the following reasons.

First, it is evident that the disposition of Helen Frankel's Estate took place over a protracted period of time, commencing with the Will she executed on September 12, 1991, followed by a second Will also executed in Florida in 1992. The Trust Agreement, was executed on October 22, 1992, and nominated plaintiff, and defendant, Lenore Monaco, (both daughters of the decedent), as Trustees. Plaintiff does not challenge her mother's capacity to know the natural objects of her bounty nor does plaintiff challenge her mother's mental capacity when she executed a Codicil on March 20, 2001 or the amendment made to the Trust in July 25, 2002. Instead plaintiff turns to the transfer of the Bronx Property which occurred by the deed dated February 2, 1998.

In order to state a claim for fraud, the plaintiff is required to present evidence such as false statements made to Helen Frankel which caused her to execute a deed that disposed of her property in a manner inconsistent with her mother's alleged conviction to share her estate among her daughters, or to submit proof as to when the fraud or undue influence occurred or the circumstances which occurred that support plaintiff's contention that the property in question was transferred due to the undue influence presumable exercised by plaintiff's sister and her husband.

A finding of undue influence requires proof of a moral coercion which interferes with independent action or by opportunity which could not be resisted to do "that which was against his free will" (see Childrens Aid Society v. Love ridge 70 NY 387, 394; also Matter of Kumstar, 66 NY2d 691, 484 NE2d 271, 496 NYS2d 414, rearg denied, 67 NY2d 647).

Assertions in a complaint which broadly claim fraudulent conduct must satisfy the [*3]mandates of CPLR 3016(b). This section, CPLR 3016(b), requires that fraud be pleaded with specificity and a complaint which does not allege fraud with sufficient specificity is dismissible as a matter of law (Wint v. ABN Amro. Mortgage Group, Inc., 19 AD3d 588, 800 NYS2d 411; Cohen v. Houseconnect Realty Corp., 289 AD2d 277, 734 NYS2d 205). Moreover, the party who contests the validity of a Will regarding the disposition of the testator's assets has the burden of proving fraud by clear and convincing evidence (see Matter of Gross 242 AD2d 333, 662 NYS2d 62; Matter of Katz 192 AD2d 327, 595 NYS2d 475) and plaintiff failed to submit clear and convincing proof regarding what may have induced her mother to transfer the Bronx Property by deed to defendant Lenore Monaco (see Matter of Evanchuk, 145 AD2d 559, 536 NYS2d 110; In re Cavallo 6 AD3d 434, 774 NYS2d 371). Nothing of substance other than the general reference to fraud or undue influence has been presented and plaintiff has failed to explain her mother's capacity to execute several Wills and a Trust disposing of her estate and yet challenges a single disposition of Bronx property made in-between her testamentary wishes.

Consequently, defendants' motion is granted and plaintiff's complaint is dismissed.

This constitutes the decision and order of this court.

Dated: April 10, 2006

J.S.C.