Upon the foregoing papers, plaintiff Guta Schapiro moves,^[FN1] pursuant to CPLR 3025 (b), for leave to amend her complaint so as to add "Guta Schapiro as Administrator of the Estate of Levi Schapiro" as a party plaintiff and to deem the Supplemental Summons and Amended Verified [*2]Complaint, a copy of which annexed to the moving papers, as having been served. The plaintiff further moves to have the stay of eviction, agreed to by the parties pursuant to a stipulation dated March 1, 2007, extended to include the proposed additional plaintiff. Defendant Shmaya Krinsky, a/k/a Shmaya Krinski (Krinsky), cross-moves for an order, pursuant to CPLR 3211 (a) (1), (5), and (7), dismissing the complaint herein.^[FN2] Defendant Zalman Schmuckler joins Krinsky in opposing the motion and in supporting the cross motion.

Guta Schapiro and Levi Schapiro (the Schapiros) were allegedly offered a deal whereby they could purchase the home in which they lived from Rose Diamond "at a significantly discounted price." To fund the purchase, the Schapiros made an arrangement with Cyla Ushpol (Ushpol),^[FN3] a woman with whom they shared "a special and close relationship" and someone who the Schapiros had known "long before [they] immigrated [sic] to America." In exchange for Ushpol's funding, Levi Schapiro assigned his interest in the contract to Ushpol, who then leased an apartment in the premises to Levi Schapiro. This arrangement is memorialized in a writing, signed by both Levi Schapiro and Ushpol, which reads:

"MEMORANDUM

"MR. LEVI YITZCHOK SHAPIRO and MRS. CYLA USHPOLagree as follows:

"1. Mr. Shapiro will go to contract to purchase 422 Crown Street Brooklyn from Mrs. Diamond as soon as possible. Mrs. Ushpol will furnish the funds for 10% down payment.

"2. Immediately after contract, Mr. Shapiro will assign the contract to Mrs. Ushpol.

"3. Upon taking title, Mrs. Ushpol will make a 10 year lease with Mr. Shapiro on the following terms:

1 year free

years 2-5 $600 a month

years 6-10 Rent to be negotiated based on rents for similar apartments. After 5 years.^[FN4]

"4. If Mrs. Ushpol will want to sell house, she will offer it to Mr. Shapiro at market value in her opinion or at price offered by other parties. If Mr. Shapiro refuses to purchase, lease may be terminated one year after sale of house. [*3]

Dated: Nov. 4, 1985."

This arrangement continued until July 31, 2006 when the Schmucklers served a 30-Day Notice on Guta Schapiro, notifying her that, as the owners of the premises,^[FN5] they were terminating her tenancy on August 31, 2006 (Levi Schapiro had predeceased Guta Schapiro on December 5, 2005, less than six months prior to service of the 30-Day Notice). Unbeknownst to the Schapiros, Ushpol had conveyed the premises to her children, the Schmucklers, in a deed dated January 19, 2000, wherein she reserved a life estate for herself, as follows:

"The Grantor reserves a life estate to posses[s] part of the property and to rent out the rest of the house, and pay all the expenses of the house."

On June 5, 2001, to correct the address of Efraim Schmuckler and to amend the grant of her life estate, Ushpol executed a second deed containing the following language:

"The Grantor reserves a life estate to posses[s] part of the property. This is a correction deed to correct the address of the Grantees and to revise the life estate of Grantor."

On or about November 22, 2006, in response to the holdover proceeding commenced by the Schmucklers, Guta Schapiro brought an action alleging, among other things, that the 1985 Memorandum (the Memo) created a right of first refusal that survived the ten-year lease term and that Ushpol's 2000 conveyance of the house to her sons prevented the Schapiros from exercising their right of first refusal in 2000, thus violating the terms of the Memo. According to plaintiff, as a result of this violation, the August 31, 2006 contract of sale entered into between the Schmucklers and Krinsky must be declared null and void.

On or about May 30, 2007, plaintiff moved for leave to amend the caption of her action to add "Guta Schapiro as Administrator of the Estate of Levi Schapiro" as a party plaintiff. Defendants opposed this motion on the ground that Guta Schapiro did not have necessary authority since her Letters of Voluntary Administration restricted the amount of the assets which she could marshal. In an order dated November 16, 2007, her motion to amend the complaint was denied with leave to renew upon presenting proof of her authority to act as representative of the Estate.

On or about June 21, 2007, Krinsky, a potential purchaser of the subject premises from the Schmucklers, cross-moved for an order permitting her to intervene in this action and to dismiss the complaint. By order dated November 29, 2007, that branch of Krinsky's motion for leave to intervene was granted and Krinsky was added as a party defendant herein. According to Krinsky, the Memo created a right of first refusal that began when Ushpol took title to 422 Crown Street on January 19, 1986 and expired once the lease term ended on January 19, 1996. Despite this contention, in a letter dated July 28, 2006, the Schmucklers did, in fact, offer Guta Schapiro a chance to buy the building on the same terms as Krinsky was given, but there is no evidence that Guta Schapiro availed herself of this option. [*4]

On February 22, 2008, Guta Schapiro filed the instant cross motion, once again seeking leave to amend her complaint to add "Guta Schapiro as Administrator of the Estate of Levi Schapiro" as a party plaintiff.^[FN6] Additionally, she asks this court to extend the stay of eviction to the proposed additional plaintiff. Defendants oppose her motion on the grounds that: (1) Guta Schapiro is attempting to revive the otherwise time-barred claims of the estate through the application of CPLR 203(f) the relation back doctrine, (2) the Memo is unambiguous and, as such, Guta Schapiro cannot offer alleged separate oral agreements between the parties to vary its terms and (3) the proposed Amended Verified Complaint is not identical to the original, but alleges facts and transactions that the original complaint fails to mention, thus precluding the application of the relation back doctrine.

Guta Schapiro counters that the claims of the estate, as alleged in the Amended Verified Complaint, are "essentially the same" and that the Amended Verified Complaint is a mere expansion of the claims made in the original complaint. Further, she asserts that the Statute of Limitations for this claim has not expired because her initial claim was timely and, under CPLR 203(f), the claims of the estate relate back to her original filing.

CPLR 3211 (a)(1) provides, in pertinent part, that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence." "A dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Heaney v Purdy, 29 NY2d 157 [1971]; see also Teitler v Max J. Pollack & Sons, 288 AD2d 302 [2001]; Jaslow v Pep Boys-Manny, Moe & Jack, 279 AD2d 611 [2001]). In order for Krinsky to prevail on her motion, the documentary evidence relied upon must be in admissible form and conclusively establish a complete defense to the plaintiff's cause of action.

"In particular, where a written agreement ... unambiguously contradicts the allegations supporting a litigant's cause of action...the contract itself constitutes documentary evidence warranting the dismissal of the complaint pursuant to CPLR 3211(a)(1), regardless of any extrinsic evidence or self-serving allegations offered by the proponent of the claim. This follows from the bedrock principle that it is a court's task to enforce a clear and complete written agreement according to the plain meaning of its terms, without looking to extrinsic evidence to create ambiguities not present on the face of the document (internal citations omitted)"

(150 Broadway NY Associates, L.P. v Bodner, 14 AD3d 1 [2004]).

On a motion to dismiss, the plaintiff's pleadings must be given "their most favorable intendment" ( Arrington v New York Times Co., 55 NY2d 433, 442 [1982]) and the plaintiff's allegations which [*5]are contrary to the documentary evidence must be accepted (see Scheller v Martabano, 177 AD2d 690 [1991]). However, a complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed (see Well v Rambam, 300 AD2d 580, 581 [2002]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 162 [1997], cert. denied 522 US 967 [1997]). It is the defendant who has the burden of showing that the document offered meets the enumerated standard for dismissal. In the instant matter, Guta Schapiro alleges, among other things, that, according to the plain language of the Memo, her right of first refusal continued beyond the ten-year lease term stated within the writing. In opposition, Krinsky alleges that the Memo supports her contention that the right of first refusal expired at the end of the ten-year term. The language in question reads, as follows:

"3. Upon taking title, Mrs. Ushpol will make a 10 year lease with Mr. Shapiro on the following terms:

1 year free

years 2-5 $600 a month

years 6-10 Rent to be negotiated based on rents for similar apartments. After 5 years.

"4. If Mrs. Ushpol will want to sell house, she will offer it to Mr. Shapiro at market value in her opinion or at price offered by other parties. If Mr. Shapiro refuses to purchase, lease may be terminated one year after sale of house."

The court does not find that the plain language of the Memo, as cited, conclusively defeats Guta Schapiro's claims as a matter of law (see Leon, 84 NY2d at 88). Moreover, case law establishes that the right of first refusal, as applied to the facts herein, could not have expired within the ten-year lease term.

"The common-law rule in New York has been modified to the extent that . . . a month-to-month periodic tenancy springs forth from the combination of tenant holdover and landlord acceptance of rent (see Real Property Law, s 232-c). Section 232-a of the Real Property Law requires that to terminate a monthly periodic tenancy, 30 days' notice to the tenant must be provided. . . . The legal theory underlying the notion of a periodic tenancy is that of an implied agreement. The holdover tenant is viewed as proffering, through his tender of rent, an option to the landlord to continue the tenancy upon the same terms (except as to duration) as the just expired lease (see Casner, 1 American Law of Property, §3.33)"

(Park Summit Realty Corp. v Frank, 107 Misc 2d 318, 322 [1980], affd 84 AD2d 700 [1981]).

"In the absence of any proof upon the subject, there can be no reason for holding that the relations of the parties have changed, so nothing has occurred to break the continuity of the holding, or from which it can be implied that any conditions exist rendering inoperative any of the terms of the lease. Nor do we think that the rule is limited to the relation merely of landlord and tenant in the use and occupation and the payment of rent, so as to exclude the independent covenants from [*6]continuing with the other parts of the lease. A holding over, to be upon the same terms as contained in the original lease, carries with it the necessary implication that all of the covenants which became binding by the execution of the lease continue to remain in full force, unless changed conditions appear rendering them inapplicable. We can conceive of no sound reason which would warrant the rejection of any part of the lease upon which the parties agreed. Their relation continued in all respects precisely as if the term had not expired. The holding over constitutes merely an enlargement of the term, and the lease is applied thereto with the same force as though it had been re-executed. In Webber v. Shearman, 3 Hill 547, it was said by Cowen, J.: Holding over after the expiration of a sealed lease is a continuation of the same tenancy, and an enlargement of the same term.' People ex rel. Chrome Steel Co. v. Paulding, 22 Hun 91. In Elwood v. Forkel, 35 Hun 202, the doctrine of the survival of independent covenants under a holding over was expressly adjudicated"

(Baylies v Ingram, 84 AD 360 [1903]; affd 181 NY 518 [1905]).

While the Schapiros' lease term may have expired on January 19, 1996, by continuing to accept rent from them, Ushpol created a month-to-month tenancy and, as established by both Park Summit and Baylies, supra, all of the covenants, including the right of first refusal, carried over and continued as if the lease had been re-executed. Consequently, both the defendants' argument that the right of first refusal expired within the ten-year lease term and the plaintiffs' argument that the right continued indefinitely are moot. When Ushpol and then the Schmucklers continued to accept the plaintiffs' rent, the right of first refusal continued until either the property was offered for sale or the Schmucklers terminated Guta Schapiro's month-to-month tenancy. Accordingly, that branch of Krinsky's motion seeking dismissal of the complaint pursuant to CPLR 3211 (a) (1) is denied.

Defendant's Motion to Dismiss pursuant to CPLR 3211 (a) (5)

CPLR 3211(a)(5) provides, in pertinent part, that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds." Krinsky asserts that the applicable Statute of Limitations has expired on Guta Schapiro's claims. Generally, the statute of limitations begins to run the day after a cause of action accrues (Gen. Constr. L. § 20). If the day the statute of limitations is set to expire is a Saturday, Sunday, or public holiday, the last day to commence the action becomes the next succeeding business day (Gen. Constr. L. § 25- a). The plaintiff initially brought suit in her own name on November 22, 2006. In her motion, plaintiff seeks leave to add the Estate as a party plaintiff and to have the court deem service of the Supplemental Summons and Amended Verified Complaint complete by its inclusion in the motion papers. In an effort to defeat the defendants' contention that the claims of the estate are time-barred, Guta Schapiro argues that such claims relate back to the filing of her original complaint. Defendants contend that, while the claims of the Estate are similar to those in Guta Schapiro's original complaint, the Amended Verified Complaint alleges new facts and transactions that do not appear in the original complaint and, as a result, those claims do not relate back to the original complaint. In determining the date when the Statute of Limitations expired, the parties take the position that the instant matter falls under CPLR 213(1) which states, in relevant part, [*7]

"Actions to be commenced within six years: where not otherwise provided for; on contract; on sealed instrument; on bond or note, and mortgage upon real property; by state based on misappropriation of public property; based on mistake; by corporation against director, officer or stockholder; based on fraud. The following actions must be commenced within six years:

1. an action for which no limitation is specifically prescribed by law"

The plaintiff alleges that Ushpol transferred the property to her children by deed dated January 19, 2000. CPLR 210(a) allows a one-year toll of the Statute of Limitations if a party with the right to bring an action dies prior to the expiration of the statute. Since Levi Schapiro died on December 5, 2005—- prior to the January 19, 2006 expiration of the statute of limitations—- plaintiff calculates that she had until January 19, 2007 to commence this action. Guta Schapiro commenced her action on November 22, 2006, within the tolling period, and alleges that the claims of the estate are timely pursuant to CPLR 203(f). Krinsky contends that the deed transferring the property from Ushpol to the Schmucklers was recorded on March 24, 2000 and that, under CPLR 213(1), the very latest the Estate could have brought an action was on March 24, 2006. The arguments of both plaintiff and defendants are misplaced.

"Interpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument" (Teitelbaum Holdings, Ltd. v Gold, 48 NY2d 51, 56 [1979]). Both plaintiff and defendants mistakenly presume that the plaintiff's cause of action accrued in 2000. On its face, the Memo is plain and does not support this assumption. Paragraph 4 of the Memo reads as follows:

"4. If Mrs. Ushpol will want to sell house, she will offer it to Mr. Schapiro at market value in her opinion or at price offered by other parties. If Mr. Schapiro refuses to purchase, lease may be terminated one year after sale of house." (emphasis added)

The common definition of a "sale" is "[t]he transfer of property or title for a price" (Black's Law Dictionary 1364 [8th ed 2004]). While Ushpol did transfer ownership of the building to her sons, this was not a "sale" under the plain meaning of the word. Under CPLR 3211 (a) (5), the defendant bears the burden of establishing his or her defense and Krinsky offers no evidence that this conveyance was for value or that any consideration was given to support the proposition that an arms length transaction had taken place. "No rule of law is better established than that a consideration in money paid, or to be paid, or of something valuable, is necessary to a deed of bargain and sale" (Bank of United States v Housman, 6 Paige Ch. 526 [1837]; citing Jackson ex dem. Howell v Delancey, 4 Cow. 427 [1825]). Moreover, the record before the court contains none of the normal indicia that a sale took place. For example, the conveyance from Ushpol to the Schmucklers did not affect the Schapiros' quiet enjoyment of their apartment in the same manner as a sale of the premises might. As Guta Schapiro avers in her sworn affidavit, she and her husband had no idea whatsoever that the property had been transferred:

"Despite having transferred the property to the Schmucklers in the later years of Ms. Ushp[o]l's life and declining mental health, Ms. Ushp[o]l continued to pay the bills on the house and collect our monthly contributions. We were given every indication for many years following the purported transfer that nothing had changed and that no investigation was needed into the continued ownership arrangement between us and Ms. Ushp[o]l." [*8]

Also lacking is the normal relinquishment of control over the premises normally indicative of a "sale." This proposition is supported by the language of the January 19, 2000 life estate contained in the deed from Ushpol to the Schmucklers in which Ushpol "reserves a life estate to posses[s] part of the property and to rent out the rest of the house, and pay all of the expenses of the house." (emphasis added). While transferring title to her sons, it is clear that Ushpol's intention was to retain control over the premises which, in the case of an actual sale, she could not have done. By the clear language of the Memo, it was only a "sale", not just any "conveyance" or "transfer", that would trigger the right of first refusal found in the Memo and, by extension, an action for breach of the Memo agreement.

Having failed establish a date certain for the accrual of the plaintiff's cause of action, that branch of defendants' motion seeking dismissal pursuant to CPLR 3211(a)(5) is denied.

Defendant's Motion to Dismiss pursuant to CPLR 3211 (a) (7)

CPLR 3211(a)(7) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action." On a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint must be liberally construed in the light most favorable to the plaintiff and all allegations must be accepted as true (see Leon 84 NY2d at 87; LoPinto v J.W. Mays, Inc., 170 AD2d 582 [1991]; Cohn v Rothman-Goodman Mgt. Corp., 155 AD2d 579 [1989]). "Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail " (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). In assessing a motion under CPLR § 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]) and the criterion is whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Guggenheimer, 43 NY2d at 275). Defendants allege that the Memo was an agreement solely between Ushpol and the plaintiff's husband, Levi Schapiro, and the right to litigate issues involving the Memo belonged to Levi Schapiro alone. The court disagrees. As Levi Schapiro's wife, Guta Schapiro qualifies as a third-party beneficiary of the contract between Levi Shapiro and Ushpol.

"Parties asserting third-party beneficiary rights under a contract must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost' (internal citations omitted)."

(Mendel v Henry Phipps Plaza West, Inc., 6 NY3d 783, 786 [2006]).

The court notes that absent from Krinsky's motion is any challenge to the validity of the Memo. In fact, by focusing upon the expiration of the right of first refusal, Krinsky actually bolsters plaintiff's claim as to its validity. Absent evidence to the contrary, a valid and binding contract existed between Levi Schapiro and Ushpol.

Moreover, as the wife of Levi Schapiro (and as evidenced in her affidavit), the underlying reason for Levi Schapiro to enter into the agreement with Ushpol was to purchase the apartment within which the Schapiros resided so that they could continue living in the manner with which they had become accustomed. It is counter-intuitive to surmise that Levi Schapiro assigned [*9]his interest in the contract in exchange for a leasehold interest in the Schapiro's apartment without intending the lease to benefit his wife as well. Krinsky has offered no evidence that Levi Schapiro was acting solely in his own interest, that he sought to exclude his wife, or that he intended to lease the apartment only for his own use. Moreover, upon the death of Levi Schapiro, neither Ushpol nor the Schmucklers sought to terminate Guta Schapiro's tenancy; rather, they continued to accept rent and converted the lease into a month-to-month tenancy in the process. The circumstances support the contention that Levi Schapiro intended for Guta Schapiro to benefit from his contract with Ushpol.

Further, the benefit to Guta Schapiro was meant to be immediate in that she and her husband resided in the premises at the time of the Memo's execution and they continued to reside there as husband and wife until his death in 2005.

Having demonstrated that she was a third-party beneficiary under the terms of the Memo, Guta Schapiro has no less a right to commence the instant action than her husband had prior to his death. In light of the foregoing, that branch of Krinsky's motion seeking to dismiss the complaint pursuant CPLR 3211 (a) (7) is denied.

Plaintiff's motion to amend her complaint pursuant to CPLR 3025(b)

CPLR 3025(b) provides that:

A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.

Leave shall be granted provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (see Santori v Met Life, 11 AD3d 597, 598 [2004], citing Ortega v Bisogno & Meyerson, 2 AD3d 607 [2003]; AYW Networks v Teleport Communications Group, 309 AD2d 724 [2003], lv dismissed 1 NY3d 566 [2003]; Leszczynski v Kelly & McGlynn, 281 AD2d 519 [2001]). While leave to amend a pleading shall be freely given upon such terms as may be just (CPLR 3025[b]), the decision whether to grant such leave is within the court's sound discretion (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; see also Haller v Lopane, 305 AD2d 370 [2003]). The exercise of that discretion will not be lightly disturbed (see, e.g., Beuschel v Malm, 114 AD2d 569 [1985]). Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine (see Edenwald Contr. Co., 60 NY2d at 959; see also Arcuri v Ramos, 7 AD3d 741 [2004]. Furthermore, a belated motion for leave to amend will be defeated by a claim of laches only where two elements are present: delay and prejudice to the nonmoving party resulting directly from the delay (see, e.g., Corsale v Pantry Pride Supermarkets, 197 AD2d 659 [1993]). In exercising its discretion, the court will consider how long the party seeking amendment was aware of the facts upon which the motion was based and whether a reasonable excuse for the delay was offered (see Slavet v Horton Memorial Hospital, 227 AD2d 465 [1996]).

In this case, the addition of the Estate as a party plaintiff is required since a portion of the potential recovery belongs to the Estate and any beneficiaries thereunder, in addition to the plaintiff. Moreover, defendant's moving papers support this result as well. Krinsky avers that it was [*10]Levi Shapiro and not his wife who possessed the claims alleged in the complaint. Upon the death of Levi Schapiro and the appointment of Guta Schapiro as the Administrator of his Estate, it became not only the right, but the duty of Guta Schapiro to prosecute any claims on behalf of her husband's estate. Given the foregoing, plaintiff's proposed amendment is not palpably insufficient, nor devoid of merit. In addition, on January 7, 2008, Guta Shapiro had the requisite authority to act as Administrator of the Estate of Levi Schapiro and to move for such relief. The fact that on February 22, 2008, less than two months after receiving the requisite authority, she served the instant motion supports the finding that there has been no undue delay in seeking leave to amend. Accordingly, that branch of plaintiff's motion which seeks an order, pursuant to CPLR 3025(b), amending the caption of this action to add "Guta Schapiro as Administrator of the Estate of Levi Schapiro" as a party plaintiff is granted. The Supplemental Summons and Amended Verified Complaint are deemed served . Such service is deemed timely as defendants have failed to establish the date upon which the claims accrued and, subsequently, the date upon which the Statute of Limitations began to run.

Plaintiff's request to extend the Stay of Eviction

In an abundance of caution, Guta Schapiro seeks to extend the stay of eviction to the new party plaintiff, "Guta Schapiro as Administrator of the Estate of Levi Schapiro". Given the fact that Guta Schapiro, individually, and Guta Schapiro, as Administrator, are one in the same person no further court action is required for the stay to apply equally to both plaintiffs. Further, since the stipulation staying the eviction is governed by its own terms, no additional court action is required for said stay to continue.

Any relief not specifically granted herein is denied.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.