Upon the foregoing papers in this action seeking an accounting and damages, plaintiff Gary Seth a/k/a Gary Silverman (plaintiff), as executor of the estate of Joyce Silverman a/k/a Joyce M. Silverman (Joyce) and as administrator of the estate of Irving Silverman (Irving), moves, by order to show cause, for an order: (1) restraining defendants Lakeden Realty Corporation (Lakeden), the estate of Milton Silverman a/k/a Milton I. Silverman (Milton), Sylvia Silverman (Sylvia), and Susan Silverman a/k/a Susan Mittman (Susan) (collectively, defendants) from transacting any business on behalf of Lakeden or using any of its corporate assets, (2) directing defendants to produce a copy of the lease for 165 Allen Street, in Manhattan (the 165 Allen Street property), (3) directing that, during the pendency of this action, Paul Fernandez, as the tenant of the 165 Allen Street property, be required to pay his monthly rent for 165 Allen Street to Mendelson & Mendelson, Esqs. (plaintiff's attorneys) to be placed in their escrow account on behalf of Lakeden, (4) directing defendants to account for all assets and monies held by Lakeden, and (5) restraining and enjoining defendants and any person acting under their direction or in concert with them from selling, transferring, hypothecating, liquidating, or in any manner alienating or encumbering, any assets of Lakeden or any interest therein during the pendency of this action. Defendants cross-move for an order, pursuant to CPLR 3211 (a) (1), (7), and (8), dismissing plaintiff's [*2]complaint based upon the grounds of a defense founded upon documentary evidence, a failure to state a cause of action, and a lack of personal jurisdiction over them.

Lakeden is a domestic corporation formed on December 16, 1933. The two shareholders of Lakeden were Irving and Milton, two brothers, who each owned 50% of its outstanding shares of stock. On January 6, 1938, Lakeden purchased the 165 Allen Street property, and has remained the legal owner of such property to date. A Shareholders' Agreement dated July 14, 1982 (the 1982 Shareholders' Agreement), executed by both Milton and Irving, states that Lakeden was "desirous of providing for the continuation of its existence and management in the event of the death of [either] one of [them]." It then sets forth, in the first paragraph thereof, that Milton and Irving agree that "neither of them shall sell, assign, pledge or dispose of any of their respective shares in Lakeden now or hereafter owned by them nor shall any such shares be transferred by either of them, except as . . . provided [therein]." The second paragraph of the 1982 Shareholders' Agreement provides that Milton and Irving would manage and operate the affairs of Lakeden jointly and would not "dispose of any major portion of [Lakeden] without the consent of the other." The third paragraph of the 1982 Shareholders' Agreement lists the several properties owned by Lakeden, but does not include the 165 Allen Street property.^[FN1]

The fourth paragraph of the 1982 Shareholders' Agreement states that Milton and Irving "do hereby bind their executors, administrators, beneficiaries or any other person entitled to receive the stock of Lakeden upon their death." It further states that "[i]n the event of the death of either [Milton or Irving] then and in that event their executors or administrators shall take or be substituted in the place of said party with the same rights and privileges." The fifth paragraph of the 1982 Shareholders' Agreement similarly provides that "[t]his agreement shall be binding upon [Milton and Irving], their heirs, executors, administrators, successors and assigns,"and that Milton and Irving "hereby covenant and agree that they, their heirs, executors, administrators, successors and assigns will execute any and all instruments, agreements, assignments, releases and/or other papers which may be required of them in accordance with or to carry out the provisions or intentions of this agreement."

The sixth paragraph of the 1982 Shareholders' Agreement prohibits the Agreement from being "altered, amended, modified or terminated. . . in whole or in part, other than by an agreement in writing between all of the parties hereto and duly executed by each of said parties." The seventh paragraph of the 1982 Shareholders' Agreement permits each of the parties, upon written notice, to "demand a monthly accounting of income and expense" to be "delivered within thirty days of said demand." The eighth paragraph of the 1982 Shareholders' Agreement provides that "[i]f it cannot be mutually agreed upon as to [*3]who will manage [Lakeden]," the management would be turned over to a third party as the managing agent, and, if the parties could not agree upon a third party as managing agent, it may be in the best interests of the parties to liquidate the assets of Lakeden and distribute them equally among them.

On November 4, 1994, Irving died intestate, survived by his wife, Joyce, and his two sons, plaintiff and Marc Silverman (Marc). At that time, no administrator was appointed for Irving's estate and no formal actions were taken in Surrogate's Court with respect to the distribution of his assets. It is undisputed that Joyce paid Irving's funeral expenses and Irving's debts, such as his medical expenses and hospital bills, and assumed possession and control of his assets. As to the shares in Lakeden, plaintiff specifically attests that when his father, Irving, died he "le[ft] his shares of [Lakeden] to [his] mother, Joyce" and that Milton, thereafter, in a sworn statement dated October 3, 1995 (the October 3, 1995 document) confirmed that he and Joyce each owned 50% of Lakeden. The October 3, 1995 document, which is executed by Milton and notarized, provides that "Milton . . . and Joyce . . . are 50% owners of Lakeden . . ., owner of [the] 165 Allen Street [property]." It further states that "[i]t is understood that when Joyce . . . dies, her share shall be distributed as follows:" 30% to Marc, 30% to plaintiff, 20% to Diedre Silverman (Diedre) (who is plaintiff's niece), and 20% to Alix Silverman (who is also plaintiff's niece). Since the document is executed by Milton alone, it would appear to be an acknowledgment of a responsibility on Milton's part to effectuate a distribution of Joyce's shares as set forth upon her death.

On September 21, 1999, Milton and Joyce both executed another agreement (the September 21, 1999 agreement) as "agreed and accepted" by each of them. Both signatures are notarized by Larry Lipsky, a notary public. The September 21, 1999 agreement provides as follows:

"MILTON SILVERMAN, & his estate & heirs hereby agree to give and JOYCE SILVERMAN agrees to accept THREE THOUSAND ($3,000.00) DOLLARS each year on or about April 30th. In addition MILTON . . . agrees to pay the real estate taxes and water bill for 2527 East 63rd Street, Brooklyn, New York for as long as JOYCE . . . or her heirs owns and lives at that residence.

"This agreement shall extend as long as 165 Allen Street, NYC is owned by MILTON . . . If and when the property is sold, MILTON . . . agrees to give to JOYCE . . ., FIFTY THOUSAND ($50,000.00) DOLLARS.

"This shall be the full and entire agreement between the parties. Beyond this agreement there are no other financial obligations between the parties.

"Both parties have had a full opportunity to review this agreement, and the parties agree based upon the former financial relationship between MILTON . . . and IRVING . . ., and in consideration of their brotherly love, that this agreement is being made and accepted by the parties.

"Notwithstanding the ownership of the property, the parties agree to transfer said sum to the other as stated above." [*4]

On April 3, 2005, Joyce died. On June 8, 2005, Milton died, and was survived by defendants herein, his wife, Sylvia, and daughter, Susan. On September 9, 2005, plaintiff was issued letters testamentary and became the executor of Joyce's estate. On July 31, 2006 (nearly 12 years after Irving's death), plaintiff was issued letters of administration and became the administrator of Irving's estate.

By summons and complaint dated November 27, 2006, plaintiff brought this action against defendants. Plaintiff's complaint asserts that after the death of Irving on November 4, 1994, Milton maintained exclusive control and management of Lakeden until his own death on June 8, 2005. Plaintiff alleges that he has demanded an accounting, pursuant to the 1982 Shareholders' Agreement, from Milton's representatives, Sylvia and Susan, but that such requests were disregarded. Plaintiff further alleges that Paul C. Fernandez is the tenant on a 20-year lease for the 165 Allen Street property, and had paid monthly rent thereon directly to Milton until Milton's death, and that, after Milton's death, such rent was paid directly to Sylvia and/or Susan, rather than to Lakeden. Plaintiff asserts that after Milton's death, he demanded that this tenant pay the rent directly to Lakeden, but that Sylvia and Susan continue to receive these monthly rent payments, without accounting for them to him. Plaintiff also alleges that Sylvia and Susan owed Lakeden and its shareholders a fiduciary duty, and that by receiving money personally from the tenant of the 165 Allen Street property, they breached this fiduciary duty. Plaintiff additionally claims that Sylvia and Susan have failed to file any corporate tax or income tax returns on behalf of Lakeden. Plaintiff's complaint seeks an immediate accounting, a return of assets of Lakeden, liquidation of Lakeden if necessary, and an award of monetary damages.

In support of his motion, for injunctive relief, plaintiff relies upon the October 3, 1995 document, contending that Joyce owned 50% of Lakeden, which owns the 165 Allen Street property, and that, as the executor of Joyce's estate, he has a duty to account for such property, as an asset of Joyce's estate. In response to plaintiff's motion, defendants have produced a copy of a 15-year lease for the 165 Allen Street property, which commenced on July 20, 2001. Such lease, between Lakeden, as landlord, and 165 Allen Realty LLC, as tenant, reflects a present monthly rent of $6,000. Defendants also attest that all taxes owed by Lakeden have been paid, and contend that there is no basis whatsoever for the granting to plaintiff of a preliminary injunction since no irreparable injury has been shown or a temporary receiver since there is no danger of a destruction or loss of property.While claiming lack of jurisdiction, defendants have cross-moved to dismiss addressing the merits of plaintiff's complaint. Defendants assert that the September 21,1999 agreement, which plaintiff claims never to have seen before, supersedes and disposes of Joyce's right to any interest in Lakedon or 165 Allen Street, and constitutes documentary evidence requiring dismissal of the complaint.

Plaintiff, his brother Marc, and his nieces Alix, and Diedre, in opposition to defendants' cross motion, have each submitted an affidavit, stating that Joyce told them on numerous occasions that she was a 50% owner of Lakeden, that Milton kept promising to [*5]provide her with an accounting but never did, and that none of them ever saw or knew about the September 21, 1999 agreement. None of them, however, dispute the genuineness of Joyce's signature on the September 21, 1999 agreement. Indeed, its authenticity is attested to by Larry Lipsky, a notary public at Greenpoint Bank, who has submitted his sworn affidavit, wherein he states that he notarized the September 21, 1999 agreement and would not have done so unless Milton and Joyce had provided him with identification and signed it before him on that date. A document acknowledged before a notary is presumed to be duly executed. Singh v Kaur, 294 AD2d 562, 563 [2002].

In order to demonstrate that the September 21, 1999 agreement was, in fact, performed by Milton, defendants have submitted a deposit slip, which is claimed to have been among Milton's records, that shows a May 14, 2001 deposit for $3,000 to a Citibank account which, Milton's records purportedly reflect, belonged to Joyce, accompanied by a handwritten note, without salutation, but apparently from Joyce, stating "Thank you both for all your help me [sic] and understand [sic] God Bless Joyce." Defendants have also submitted copies of tax bills, which are claimed to have been obtained from Milton's records, showing proof of payment of taxes for Joyce's residence at 2527 East 63rd Street. In addition, defendants have submitted evidence of payment of water bills, which, they assert, were found among Milton's records, showing payment made for the water bills for Joyce's residence at 2527 East 63rd Street.

Plaintiff responds that defendants have not established, by the aforesaid proof, full performance of Milton's obligations under the September 21,1999 agreement. Noting that these documents are annexed only to counsel's affirmation, plaintiff complains that no proof is furnished confirming that the deposit slip was, in fact, found in Milton's records, and that no copy of the cancelled $3,000 check by which Milton made this deposit into Joyce's account has been submitted. He further asserts that there is no proof of payments in 2000 or in any year after 2001. Plaintiff also complains that no proof is furnished showing that the Department of Finance and Department of Environmental Protection records were from Milton's records or that the real estate taxes were paid for any period other than for May and October 2001 or that any water bill was paid after April 10, 2001.

Defendants' cross-motion to dismiss for lack of personal jurisdiction must be granted. Plaintiff has failed to produce proof of service in response to defendants' motion as required by CPLR 3211 (e), nor has he addressed this ground for dismissal in his response to the cross-motion. Such dismissal is, of course, not on the merits and would permit plaintiff to reinstitute this suit on the same grounds. Accordingly, this court will address defendants' alternative grounds for dismissal which addresses the merits of the suit.

Defendants rely upon the September 21, 1999 agreement between Joyce and Milton as evidence that Joyce had transferred her shares in Lakedon, surrendering all interest in 165 Allen Street, in consideration of Milton's promise to pay her $3,000. each year, to pay the taxes and water bills on her residence at 2527 East 63rd Street for as long as she or her heirs [*6]owns and lives there, and to pay her $50,000 upon the sale of 165 Allen Street. Plaintiff challenges defendants' claim on several grounds, to be addressed hereafter, but a threshold issue is whether Joyce had the authority, in the absence of letters of administration for the estate of her late husband, Irving, and in light of the 1982 Shareholders' Agreement, to transfer the interest previously held by Irving in Lakeden to her brother-in-law, Milton, subsequent to Irving's death. Such a transfer, if validly effectuated, would have relinquished any of Joyce's ownership rights in the shares of Lakeden and the 165 Allen Street property owned by Lakeden and limited plaintiff's remedy solely to the payments as provided by the September 21, 1999 agreement.

In reliance on EPTL 4-1.1, plaintiff argues that even if Joyce had transferred her ownership interest by the September 21, 1999 agreement, this transfer could not have divested her children (plaintiff and his brother) of their ownership interests in Lakeden. EPTL 4-1.1, which is entitled "Descent and distribution of a decedent's estate," and provides that after deduction of debts, administration expenses, and reasonable funeral expenses, distribution of the property of an intestate decedent, survived by a spouse and issue, shall be "fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation"(EPTL 4-1.1 [a] [1]). Plaintiff contends that since he and his brother, Marc, were Irving's issue at the time of Irving's death, the September 21,1999 agreement could not have divested them of their ownership interests in Lakeden and, thus, would have had no effect on their ownership of the Lakedon shares, which they implicity claim vested upon their father's death, although no authority is cited for such contention.

EPTL 4-1.1 provides that once all debts, administration expenses, and reasonable funeral expenses have been paid, and the spouse receives $50,000, the issue may receive half of the residue. Although it grants the issue of a decedent his or her proportionate share of the balance of the decedent's estate, it does not confer upon these distributees any interest in a particular asset of the estate or even require that they receive any assets if the assets are insufficient after payment of all debts, expenses, and $50,000 to the decedent's spouse. Here, Irving died intestate with no specific bequest of his 50% shares in Lakeden being made. While these shares may have formed a part of Irving's residuary estate, they would not necessarily pass in kind, but would have been subject to the administration of Irving's estate. Although, in New York, the interest of a statutory distributee vests upon death (Matter of Smith, 114 Misc 2d 346, 349 [1982]; United States v. Comparato, 850 F. Supp. 153, 157 [ED NY, 1993], aff'd 22 F2d 455 [2d Cir., 1994]), EPTL 4- 1.1 does not per se grant plaintiff or his brother, as Irving's issue, any particular entitlement to the Lakeden shares.

Moreover, while no letters of administration were granted with respect to Irving's estate until 12 years after Irving's death (apparently in anticipation of commencement of this action), and no action was taken in Surrogate's Court as to his estate's assets, Joyce (although not formally an administrator of Irving's intestate estate pursuant to EPTL 1-2.13), as the surviving spouse of Irving, was a person who would have qualified as such (see SCPA 1001 [1] [a]), and, by her actions, she, in fact, held herself out and became the personal [*7]representative of Irving's estate. During the more than 10 years after Irving's death, Joyce undertook duties and responsibilities ordinarily assumed by a fiduciary (see Matter of Lupoli, 275 AD2d 781, 782 [2000]; Matter of Sakow, 219 AD2d 481, 483 [1995]; Matter of Buxton, 1 Misc 3d 903 [A], *3 [2003]), including, as reflected in the October 3, 1995 document, distributing to herself her share of Irving's assets by conferring ownership upon herself of Irving's 50% interest in Lakeden. Her authority to do so was recognized by Milton, and was not objected to or opposed by her sons, including plaintiff.

Where a person assumes the role of a fiduciary, exercising all the powers of a fiduciary and disposing and transferring the assets of the estate, without objection from the other distributees, he or she is held to have become a de facto fiduciary of the estate (see Matter of Sakow, 219 AD2d at 483). The concept of a de facto fiduciary has been recognized under New York law (see Matter of Lupoli, 275 AD2d at 782; Matter of Sakow, 219 AD2d at 483; Matter of King, 194 AD2d 726, 726 [1993]; Matter of Mayo, 11 Misc 3d 1072 [A], *5 [2006]; Matter of Buxton, 1 Misc 3d at *3). "It is well settled that th[e c]ourt may deem a person to be a de facto fiduciary, even though he or she never qualified or was authorized to act in a fiduciary capacity, if that person undertook duties and responsibilities ordinarily assumed by a fiduciary" (Matter of Buxton, 1 Misc 3d at *3; see also Matter of Sakow, 275 AD2d 279, 280 [2000]; Matter of Sakow, 219 AD2d at 483; Matter of Mayo, 11 Misc 3d at *5)."Thus courts in New York will extend fiduciary duties and liabilities to a de facto fiduciary where that person has affirmatively acted as if a de jure fiduciary" (Matter of Carvel, NYLJ, Nov. 24, 1995, at 33, col 3 [Surrogate's Court, Westchester County]).

While the concept of a de facto fiduciary has generally been applied to cases where the de facto executor has abused his or her fiduciary status and has, therefore, been held obligated to account to the beneficiaries of the estate for his or her abuse and self-dealing (see Matter of Sakow, 219 AD2d at 483; Matter of Mayo, 11 Misc 3d at *5), it is equally applicable here where Joyce, the de facto fiduciary, was also presumptively the primary beneficiary of her husband's estate and undertook the responsibility of paying his debts and disposing of his assets. Moreover, Joyce did not usurp any rights belonging to her sons as there was no specific bequest of the Lakeden stock to them, and plaintiff, at no time during the 12 years after his father's death, sought to have an administrator appointed, demanded any shares in Lakeden, challenged his mother's disposition of his father's estate, or claimed that he was denied his share in his father's estate.

Rather, plaintiff acquiesced in his mother's assumption of ownership over the 50% interest in the Lakeden shares and acknowledged such ownership in his own sworn affidavit in support of his instant motion. Plaintiff, in his affidavit, concedes that Irving "died, leaving his shares of [Lakeden] to [his] mother, Joyce." In fact, plaintiff has proffered and relies upon the October 3, 1995 document, asserting that Milton confirmed therein that he and Joyce "each owned fifty (50%) percent of Lakeden . . .[the] owner of [the] 165 Allen Street [property]." That document in no way prohibited Joyce from transferring her interest in Lakedon to Milton prior to her death. [*8]

Plaintiff's admission that Joyce was the 50% owner of the Lakeden shares in 1995 is inconsistent with his present argument that Joyce did not own the shares or lacked the authority to transfer the shares to Milton at the time she executed the September 21, 1999 agreement.

" Equitable estoppel prevents one from denying his own express or implied admission which has in good faith been accepted and acted upon by another'"(Walls v Levin, 150 AD2d 873, 874 [1989], quoting Airco Alloys Division, Airco Inc. v Niagara Mohawk Power Corp., 76 AD2d 68, 81 [1980]). Furthermore, under the doctrine of equitable estoppel, a party will not be permitted to assume inconsistent positions or to take a position with regard to a matter which is contrary to, or inconsistent with, one he or she previously assumed, at least where he or she had or was chargeable with full knowledge of the facts, and another person will be prejudiced by his or her action (see Milton Weinstein Assocs. v NYNEX Corp., 266 AD2d 138, 139 [1999]; Matter of Southampton [Bill], 220 AD2d 752, 752 [1995]; Chautauqua County Fedn. of Sportsmens Club v Caflisch, 15 AD2d 260, 264-265 [1962]).

"One cannot in the same proceeding rely upon evidence which he or she has brought into the case and then assail it" (Matter of Pace v Assessor of Town of Islip, 252 AD2d 88, 92 [1998]; see also Mohen v Mooney, 205 AD3d 670, 672 [1994]; Matter of Marcus, 191 Misc 2d 497, 504 [2002], affd in part, appeal dismissed in part by 2 AD3d 640 [2003]). "Parties are estopped to deny the reality of the state of things which they have made to appear to exist and upon which others have been made to rely"(Kimm v Blue Cross & Blue Shield of Greater NY, 160 Misc 2d 97, 104 [1993] [internal citation omitted]; see also Besicorp Group v Enowitz, 235 AD2d 761, 764 [1997]). Here, in paying Joyce's taxes and water bills and $3,000 in consideration of her transfer of the Lakeden shares, Milton relied upon Joyce's 50% ownership interest and plaintiff, as Joyce's representative, who has submitted and propounded the October 3, 1995 document as valid, cannot be heard now to deny Joyce's ownership of a full 50% interest in Lakeden. Due to plaintiff's representations in this action, and his silence and inaction for 12 years, he is bound by the facts as asserted by him and equitably and judicially estopped from denying his mother's status as a de facto administrator and her ability to transfer Irving's Lakeden shares to herself (see Milton Weinstein Assocs., 266 AD2d at 139; Matter of Pace, 252 AD2d at 92; Matter of Southampton [Bill], 220 AD2d at 752; Mohen, 205 AD2d at 672; Walls, 150 AD2d at 874; Matter of Marcus, 191 Misc 2d at 504). As the sole successor to Irving's interest in Lakedon, Joyce had the right to transfer her shares in compliance with the terms of the 1982 Shareholder Agreement.

Plaintiff argues, however, that even if the September 21, 1999 agreement provided for the transfer of Joyce's ownership interest in Lakeden, it was in violation of the 1982 Shareholders' Agreement. In support of this argument, plaintiff cites to the first, fourth and fifth paragraphs of the 1982 Shareholders' Agreement, which he argues, provided, inter alia, that Milton and Irving and their heirs could not transfer their shares in Lakeden. He contends that these provisions, made binding upon Joyce, render her transfer of shares to Milton in the September 21, 1999 agreement violative of the 1982 Shareholders' Agreement. [*9]

The first paragraph of the 1982 Shareholders' Agreement does prohibit the transfer of Lakeden shares "except as . . . provided" and the fourth paragraph, which alone speaks to a successor, does provide that upon their deaths, executors or administrators "shall take or be substituted in the place of said party." However, the sixth paragraph of the 1982 Shareholders' Agreement expressly permitted and authorized the parties to alter, amend, modify, or terminate it as long as the agreement to do so was in writing and executed by each of the parties bound. Here, the September 21, 1999 agreement is in writing and executed by both Milton, an original signatory, and Joyce, who was Irving's heir upon whom the 1982 Shareholders' Agreement was binding. In accordance with the sixth paragraph of the 1982 Shareholders' Agreement, Joyce, as Irving's successor, was authorized to modify the 1982 Agreement in writing and did so by transferring her shares to Milton.

The September 21, 1999 transfer by Joyce to Milton did not violate any terms of the 1982 Shareholders' Agreement. While the second paragraph of the 1982 Shareholders' Agreement provided that Milton and Irving would both manage and operate the affairs of Lakeden jointly,^[FN2] and would not dispose of their respective interest without the consent of the other, Irving's shares were actually disposed of with Milton's consent. The fourth and fifth paragraphs, pursuant to which Milton and Irving bind their executors, administrators, beneficiaries, or any person entitled to receive stock of Lakeden upon their death, and commit them to execute such documents as might be required to carry out the provisions or intentions of the 1982 Shareholders' Agreement, do not direct the transfer of Lakeden shares to any particular person. Thus, Joyce was not prohibited by any terms in the 1982 Shareholders' Agreement from transferring her shares to Milton.

Having determined that Joyce became the rightful owner of Irving's 50% share of Lakeden following his death and that she was empowered, with the consent of the only other shareholder, Milton, to convey her interest to Milton, it becomes necessary to scrutinize the language of the September 21, 1999 document purported to have conveyed such interest.

The interpretation of a contract is a legal matter for the court. 805 Third Avenue Co. v M. W. Realty Associates, 58 NY2d 447, 451 (1983). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the expressed intent, based upon the language set forth within the four corners of the contract. South Road Assoc., LLC v International Business Machines Corp., 4 NY3d 272, 277 [2005]; Fetner v. Fetner, 293 AD2d 645 [2d Dep't, 2002]. Where there are ambiguities in the written agreement, extrinsic evidence is permissible to aid in construction. Geothernmal Energy Corp. v. Caithness [*10]Corp., 34 AD3d 420, 424 [2d Dep't, 2006]. However, "before looking to evidence of what was in the parties minds, a court must give due weight to what was in their contract." W.W.W. Assoc., Inc. v Giancontieri, 77 NY2d 157, 162 [1990].

The instant motion brought pursuant to CPLR 3211 (a) (1) and (8) has been presented to the Court upon an apparently complete record insofar as the parties have been able to assemble the relevant documentation. All of the original parties to the controlling contracts, the now-deceased progenitors of the litigants herein, are unavailable to testify as to their intentions in drafting the documents. Defendant Sylvia Silverman, the surviving spouse of Milton, and the party most likely to have some knowledge of the circumstances surrounding the execution of the September 21, 1999, document, has offered no evidence. Indeed, there is no suggestion from the parties, including Susan Silverman who does submit her affidavit in support of her motion to dismiss, that any participant in this litigation has direct knowledge of the circumstances of Joyce and Milton's execution of the September 1999 document. Susan Silverman's affidavit relies entirely upon the language of the 1999 document, offering no other information. Plaintiff states that he did not even know of the document's existence until this action was brought, but does not contest its authenticity. The undisputed evidence is that, at least since 1999, and probably prior thereto, Milton was the sole manager of the property of Lakeden at 165 Allen Street. There is no suggestion that further discovery is necessary to reveal the "true" intent of the 1999 document. The only evidence offered in opposition to the cross motion is the affidavits of Joyce's intended beneficiaries as recited in the October 3, 1995 document, executed by Milton alone, to the effect that Joyce had told them she was a 50% owner of Lakeden Realty which owned 165 Allen Street and that she had requested an accounting from Milton which was not forthcoming. Such statements are self-serving and inadmissible under the Deadman's Statute, CPLR § 4519. Matter of Wood, 52 NY2d 139, 144 (1981).

CPLR 3211 (c) empowers the court to treat a motion to dismiss made upon any grounds set forth in subdivisions (a) or (b) as a motion for summary judgment where an evidentiary showing has been made that such treatment is appropriate to the expeditious disposition of the case and the parties are on notice of such treatment. In this case, the motion is based upon documentary evidence alleged to be dispositive of the merits. Both sides have submitted evidence and arguments addressed to the issue and are well aware that this court will address the cross-motion to dismiss on the merits. Subsidiary issues have been briefed. Upon a motion to dismiss pursuant to CPLR 3211 (a) (1), where, as here, the documentary evidence contradicts the allegations of the complaint, such allegations do not enjoy a presumption of truth. Sterling Fifth Assoc. v Carpentille Corp., Inc., 9 AD3d 261 [1st Dep't, 2004]. The interpretation of the documentary evidence is for the court.

"[W]hen interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the expressions of the parties, so that their reasonable expectations will be realized" (Matter of John E. Andrus Mem. Home v DeBuono, 260 AD2d 635, 636 [1999]; [*11]see also Johns v D.G.S. Carting Co., 40 AD3d 929, 933 [2007]; Yonkers Contr. Co. v Romano Enters. of NY, 40 AD3d 629, 629 [2007]; Singh v Atakhanian, 31 AD3d 425, 427 [2006]; Joseph v Creek & Pines, 217 AD2d 534, 535 [1995]).

The September 21, 1999 agreement provides for direct payment by Milton and his estate and heirs (a provision that was added by hand) to Joyce of $3,000 each year in addition to payment of real estate taxes and water bills on her home for as long as she or her heirs own and reside there ^[FN3] "as long as 165 Allen Street NYC is owned by Milton." Upon sale of the property by Milton or his heirs, Joyce is to receive $50,000. This agreement is expressly represented to be "the full and entire agreement between the parties" and states unequivocally: "Beyond this agreement there are no other financial obligations between the parties."

Plaintiff argues that because 165 Allen Street is in fact owned by Lakeden and is not and never was in Milton's name, the agreement is ineffective as a transfer of Joyce's 50% share of Lakeden. This hyper-technical argument cannot, however, overcome the clear intent of the document, particularly in light of the evidence of its performance. In fact, the document contains no reference to Lakeden stock. However, the undisputed evidence is that the only asset of Lakeden at the time was 165 Allen Street. There is also no evidence of any other property or "financial obligation" shared by the parties. Upon Joyce's transfer of her interest in Lakeden, Milton became the sole owner of Lakeden stock and, correspondingly, the sole beneficial owner of 165 Allen Street, title to which at all relevant times was in the corporation. The property was apparently a component of "the former financial relationship between MILTON SILVERMAN and IRVING SILVERMAN" which was Lakeden Realty.

The final provision of the agreement, which follows an acknowledgment that "[b]oth parties have had a full opportunity to review this agreement," reads: "Notwithstanding the

ownership of the property, the parties agree to transfer said sum to the other as stated above." The language of this provision does create some ambiguity as to its intended purpose, but it may have merely been an oblique reference to the fact that title to the property was actually in Lakeden. Had 165 Allen been one of many Lakeden holdings, a situation which appears to have been the case at an earlier point in the history of the brothers' "former financial relationship," this provision would be more comprehensible,but there is no suggestion whatever that such was the case. Moreover, the agreement is unequivocal in asserting that "there are no other financial obligations between the parties." The Court concludes, therefore, that, given the handwritten insertion of "& his estate & heirs," which was clearly intended to bind Milton's heirs to comply with the terms of payments to and on behalf of Joyce and her heirs, that this last caveat was meant to ensure the survival of the agreement [*12]following Milton's death, regardless of how title to the property was held, at least until the property was sold.

Thus, this Court concludes, that, giving the language of the September 21, 1999 agreement its practical meaning in the circumstances, the unambiguous intent of the contracting parties, as expressed therein, was to transfer to Milton all of Joyce's shares of Lakeden, thereby conveying full beneficial ownership of 165 Allen Street to Milton, as consideration for the security that Joyce and her heirs would have in being able to continue to reside in their family home without concern for their own economic limitations, a $3,000 annual stipend to Joyce, and a return of $50,000 upon the sale of the property, even if no profit to Milton were derived therefrom.

A document clear and complete on its face should be enforced in accordance with its terms. W.W.W. Assocs. v Giancontieri, 77 NY2d at 162. Accordingly, the cross-motion to dismiss the complaint seeking an accounting and related relief premised upon plaintiff's alleged entitlement to fifty percent of Lakeden Realty is granted. This Court finds that plaintiff has no legal interest in Lakeden Realty. Plaintiff has not sought recovery under the terms of the September 21, 1999 agreement and this decision does not determine his rights to such relief.

Plaintiff's motion for injunctive and equitable relief has been rendered moot by the decision herein and is denied in any case.

This action is also dismissed for failure to establish personal jurisdiction over the defendants.

The constitutes the decision and order of the Court.

E N T E R,

J. S. C.