[*1]
Bich v Bich
2024 NY Slip Op 50186(U) [81 Misc 3d 1249(A)]
Decided on February 22, 2024
Supreme Court, New York County
Lebovits, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 22, 2024
Supreme Court, New York County


Veronique Bich, Plaintiff,

against

Bruno Bich, Defendant.




Index No. 652092/2020



Glenn Agre Bergman & Fuentes LLP, New York, NY (Michael Paul Bowen of counsel), for plaintiff.

Ballard Spahr LLP, New York, NY (James V. Masella, III, Brittany M. Wilson, Kelly McGlynn and Joseph J. Bailey of counsel), for defendants.


Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 020) 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416 were read on this motion for PARTIAL SUMMARY JUDGMENT.

This action arises from alleged breaches of a post-nuptial agreement made between [*2]plaintiff, Veronique Bich, and the late Bruno Bich, plaintiff's ex-husband.[FN1] In February 2022, this court granted in part and denied in part plaintiff's motion for summary judgment in her favor on her claims and the Estate's cross-motion for partial summary judgment in its favor on its counterclaims. (See Bich v Bich, 2022 NY Slip Op 50079[U] [Sup Ct, NY County 2022].) On appeal, the Appellate Division, First Department, held that one issue resolved by this court in its February 2022 decision instead raised a dispute of fact requiring trial, and modified accordingly. (See Bich v Bich, 220 AD3d 402, 402-403 [1st Dept 2023].) The Court otherwise left the February 2022 decision undisturbed. (See id.)

Trial in the action has been scheduled since June 2023 to be held in early 2024; jury selection is now scheduled to start on March 4, 2024. (See NYSCEF No. 390 at 1-2 [order discussing this point].) Consistent with that trial schedule, plaintiff filed her note of issue on December 1, 2023. (NYSCEF No. 358.) This court then denied the Estate's motion to vacate the note of issue. (See NYSCEF No. 390.)

Plaintiff now moves again for partial summary judgment under CPLR 3212, this time seeking dismissal of one of the Estate's counterclaims on statute-of-limitations grounds. (See NYSCEF No. 391 at 1.) Relatedly, plaintiff moves to amend her reply to the Estate's counterclaims to add the affirmative defense that the counterclaims are barred by the statute of limitations.[FN2] (See id. at 2; see also NYSCEF No. 403 at 5 [redline of proposed amended reply].[FN3] ) The motion is denied.

DISCUSSION

On this motion, plaintiff seeks to raise a statute-of-limitations challenge to that aspect of the Estate's breach-of-fiduciary counterclaim arising from plaintiff's alleged misappropriation of a 15th Century painting by the painter popularly known as Fra Angelico. Plaintiff's limitations argument, in essence, is that the removal of the painting from her shared residence with Mr. Bich by a third party (which plaintiff contends to have initially occurred for legitimate reasons) happened in 2007 or 2008, and that she and Mr. Bich jointly decided no later than 2010 not to pursue the painting's return. Thus, plaintiff contends, any counterclaim related to the painting is time-barred and should be dismissed accordingly. Plaintiff's assertion of this argument suffers [*3]from multiple fatal procedural flaws.[FN4]

1. Plaintiff's opposition to the Estate's prior summary-judgment cross-motion—an opposition she filed in January 2021—used some of the same basic facts on which plaintiff now relies to contest the merits of that cross-motion as it pertained to the Fra Angelico painting.[FN5] (See NYSCEF No. 78 at ¶ 9 [plaintiff's affirmation]; NYSCEF No. 82 at 22-23 [memorandum of law].) But plaintiff did not raise a statute-of-limitations argument in opposition to the cross-motion (or in support of her own summary-judgment motion). In other words, plaintiff is essentially now bringing a successive summary-judgment motion. This court concludes, in its discretion, that plaintiff has not shown sufficient cause why she should be permitted to do so.

Plaintiff asserts that this is not a "successive" motion, strictly speaking, because on her prior summary-judgment motion she "did not seek summary judgment on any aspect of the Estate's counterclaim." (NYSCEF No. 416 at 3.) But the distinction is fine, at best, between (i) filing a second summary-judgment motion for the same relief sought on the first motion, and (ii) filing a second summary-judgment motion for relief that could have been, but was not, sought on the first motion. Plaintiff's reliance on this distinction is unpersuasive—particularly given the statutory policy, embodied in CPLR 3211 (e) and CPLR 3018 (b), of eliciting statute-of-limitations defenses as early as possible in an action.[FN6]

Plaintiff contends that "unclarity surrounding this counterclaim persisted until depositions of the relevant witnesses occurred at the end of 2023 and . . . early January 2024." (NYSCEF No. 404 at 7-8.) But plaintiff's own memorandums of law on this motion show that she had direct, contemporaneous knowledge about the painting and the circumstances surrounding its removal that would have enabled her to raise this argument three years ago, had she chosen to do so. (See NYSCEF No. 404 at 3-4; NYSCEF No. 416 at 5-6.) Plaintiff says that she has raised the limitations defense "shortly after confirming in recent discovery that defendant has no proof to contradict plaintiff's evidence as to timing." (NYSCEF No. 404 at 8.) Plaintiff, however, has had that "evidence as to timing" in her possession all along. Her "confirming in recent discovery" statement, therefore, merely shows that her decision to wait until now to raise [*4]the defense was made for tactical reasons, rather than because she was unable to do so earlier. This court declines in these circumstances to permit plaintiff to move a second time for summary judgment.

2. The court's conclusion on this point is bolstered by the prejudice to the Estate that would result were the court to permit amendment (and a second summary-judgment motion) now—after discovery has closed (and on the eve of trial). Plaintiff argues that the amendment would not lead to surprise or prejudice to the Estate. That is, she contends that Mr. Bich's affidavits on the prior cross-motion for summary judgment (executed a few months before he died) are consistent with plaintiff's limitations theory. (See id.) She also asserts that Mr. Bich could have "provide[d] fulsome evidence on this topic" at the time of the prior motions, such that "any 'prejudice' occasioned by" his choice not to do so "is of his own making." (NYSCEF No. 416 at 7.) These contentions, though, do not address the basic point that the Estate lacked an opportunity prior to the close of discovery to cross-examine plaintiff about the painting with an eye toward her statute-of-limitations defense. And this court made clear when declining to vacate the note of issue that it would not permit trial to be delayed by the taking of further, supplemental discovery. (See NYSCEF No. 390 at 2.) Forcing the Estate to contest plaintiff's proffered summary-judgment motion in these circumstances would be unfair. This court declines to take that step.[FN7]

Accordingly, it is

ORDERED that the branch of plaintiff's motion seeking dismissal under CPLR 3212 of the portion of the Estate's breach-of-fiduciary-duty counterclaim based on the Fra Angelico painting is denied; and it is further

ORDERED that the branch of plaintiff's motion seeking leave under CPLR 3025 to amend her reply to the Estate's counterclaims is denied.

DATE 2/22/2024

Footnotes


Footnote 1:After Mr. Bich's death, the Bich children (Gonzalve, Charles, and Guillaume Bich) were substituted as defendants in their representative capacity as personal representatives of Mr. Bich's Estate. For simplicity, this order refers to defendants as "the Estate."

Footnote 2:Plaintiff's motion papers are ambiguous about whether the requested amendment should be seen as a request for leave to amend under CPLR 3025 (b) or a request for leave to conform the pleadings to the proof under CPLR 3025 (c). The differences between these two grounds, if any, are not material to the court's decision on this motion.

Footnote 3:Although plaintiff's notice of motion states that she is seeking leave to amend her reply with respect to one particular branch of one of the Estate's counterclaims (see NYSCEF No. 391 at 1-2), the proposed amendment itself is phrased broadly enough to apply to all of the counterclaims (see NYSCEF No. 403 at 5).

Footnote 4:This court is not persuaded by the Estate's argument that plaintiff's motion flouts this court's order denying the motion to vacate the note of issue. Unlike the Estate's proposed summary-judgment motion practice, this motion is based solely on the existing evidentiary record and can be resolved now without delaying the start of trial. (Cf. NYSCEF No. 390 at 2.)

Footnote 5:The summary-judgment motion and cross-motion were fully briefed by January 2021, but were not decided until February 2022 due to delays stemming from Mr. Bich's death in the spring of 2021.

Footnote 6:This court declines to rest its decision directly on these provisions, as the Estate urges. (See NYSCEF No. 406 at 10.) The Estate's fiduciary-duty counterclaim, as initially pleaded, apparently misidentified the painting at issue—thereby potentially impeding plaintiff's ability to raise a limitations defense in an answer or pre-answer motion to dismiss. (See NYSCEF No. 27 at 22 ¶¶ 4-5, 11 [counterclaims].) That said, as noted above, CPLR 3211 (e) and CPLR 3018 (b) are intended, to the extent possible, to channel the assertion and resolution of limitations defenses into the early stages of an action. This statutory approach informs this court's thinking on whether plaintiff should be permitted to assert a limitations defense through a second summary-judgment motion brought on the eve of trial.

Footnote 7:Although this court does not reach the merits of the motion, the court notes that much of the evidence on which plaintiff relies may not be used in support of summary judgment: That evidence is inadmissible under the Dead Person's Statute, CPLR 4519. Plaintiff asserts that she may introduce this evidence because she "is defending herself against claims made on behalf of the decedent based on alleged communications between the decedent and the adverse party." (NYSCEF No. 416 at 5.) But, as plaintiff's own cited cases reflect, a decedent's representative does not waive the protection of the Dead Person's Statute by asserting claims and obtaining pretrial discovery relating to communications with the decedent—only by introducing evidence about those communications at trial itself. (See Matter of Wood's Estate, 52 NY2d 139, 144 [1981] [explaining that the statute's evidentiary bar applies "unless the representative of the deceased has waived the protection of the statute by testifying himself or introducing the testimony of the decedent into evidence at trial"] [emphasis added]; Tepper v Tannenbaum, 65 AD2d 359, 361 [1st Dept 1978] [holding that CPLR 4519's language "permits testimony by the surviving adverse party as to the particular transaction or communication" when "the deceased's deposition has been given in evidence at the trial by [a]ny party"] [internal quotation marks omitted].) Plaintiff contends that "[t]o the extent the Estate offers at trial any evidence on this Fra Angelico claim against Veronique, she has the absolute right to offer in evidence her testimony to defeat this claim." (NYSCEF No. 416 at 1.) That is true. It is also true that, before trial, plaintiff would be able to rely on that testimony to oppose a motion by the Estate for summary judgment in its favor on the claim. (See Kuznitz v Funk, 187 AD3d 1006, 1008-1009 [2d Dept 2002].) But the Court of Appeals has held, "[e]mphatically," that "evidence excludable under the Dead Man's Statute should not be used to support summary judgment," as plaintiff seeks to do on this motion. (Phillips v Joseph Kantor & Co., 31 NY2d 307, 313 [1972] [emphasis added].)