[*1]
Knight v Nicholas
2025 NY Slip Op 50562(U) [85 Misc 3d 1257(A)]
Decided on March 21, 2025
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2025
Supreme Court, New York County


Angel Knight, Plaintiff,

against

Tiffany Nicholas, Nina Rodriguez, and Dr. Kaplan, Defendants.




Index No. 100392/2019



No appearance for plaintiff.

Jackson Lewis P.C., New York, NY (Douglas J. Klein and Eugenia Fowlkes of counsel), for defendant Dr. Terry Kaplan.


Gerald Lebovits, J.

Plaintiff pro se, Angel Knight, brought this action in March 2019 against defendants, Tiffany Nicholas, Nina Rodriguez, and Dr. Terry Kaplan.[FN1] Plaintiff was at one time a resident of a shelter operated by a non-profit organization called Project Renewal. Defendant Kaplan states that she is a Project Renewal staff member.[FN2]

Plaintiff's complaint alleges that she took out multiple insurance policies on the lives of each of her children, "paid for . . . with Social Security savings," and that "Project Renewal staff stole them from me claiming payee control," telling her "that they needed to feed the homeless [*2]shelter." (NYSCEF No. 23 at 2-3 [reproducing complaint].[FN3] ) Plaintiff also alleges that she had "begged and pleaded for the defendants not to kill my family and my mother" but that defendants nonetheless "persuaded cops to locate my family to commit the act against my love[d] ones." (Id. at 3.) She further alleges that "[t]hey committed acts against another woman['s] kids believing [they] were mine[,] . . . attached my children['s] names and mother['s] name[] to those dead bodies[,] and cashed those premiums" that belong instead to her. (Id.)

For reasons not comprehensible to the court, defendant Kaplan chose to answer the complaint, rather than file a pre-answer motion to dismiss under CPLR 3211. The action then went through several years of tortured discovery.[FN4] In 2024, after completing discovery, Kaplan filed a motion seeking dismissal under CPLR 3211 (a) (7) or, in the alternative, summary judgment under CPLR 3212 dismissing plaintiff's claims against her. (See NYSCEF No. 8 [reproducing motion papers].) This court denied the motion; the motion papers did not establish that they had been properly served on plaintiff at her current address. (See NYSCEF No. 7 [reproducing order entered May 15, 2024].)

Kaplan now moves for leave to renew her motion for dismissal or for summary judgment. (See NYSCEF No. 5 [notice of motion].) On this motion, Kaplan provides an attorney affirmation (and supporting documents) attesting in great detail to her efforts to serve plaintiff by mail and email with copies of the motion papers (see NYSCEF No. 6 [attorney affirmation]); and relies on the memorandum of law that she submitted before (see NYSCEF No. 8 at 5-17 [reproducing mem. of law] [PDF pagination]). Plaintiff has not opposed the motion.

On considering Kaplan's submissions on this motion, this court is now satisfied that she has made diligent efforts to serve plaintiff with copies of the relevant motion papers at the last-known address available for plaintiff.[FN5] The court therefore grants leave to renew.

On the merits, Kaplan argues that plaintiff has not stated a cause of action. According to her, plaintiff's allegations with respect to the life-insurance policies do not include any fact "about the life insurance policies which would suggest they ever existed in the first place," much less that "any of the life insurance policies belonged" to plaintiff. (NYSCEF No. 8 at 13 [PDF pagination].) Kaplan also contends that plaintiff's allegations about purported efforts to harm her and her family "sound[] in conspiracy involving sinister-like conduct motivated by greed" and should be dismissed "on the basis that [they] reject[] any sense of reality." (Id. at 14 [PDF pagination].)

Kaplan's arguments for dismissal under CPLR 3211 are not entirely persuasive.

As to facts about the policies and their (alleged) theft, Kaplan provides no authority for the proposition that plaintiff was required to include in her complaint detailed and particularized allegations to support her theft-related claim. Instead, the proper course would be for Kaplan to seek those details through demanding a bill of particulars or serving discovery requests.

As to plaintiff's improbable and "sinister" allegations about efforts to harm her and her family, the First Department has held (in cases that Kaplan does not cite) that a court considering a CPLR 3211 (a) (7) motion need not presume as true "factual claims" that are "inherently incredible." (Roberts v Pollack, 92 AD2d 440, 444 [1st Dept 1983]; accord M & E 73-75, LLC v 57 Fusion LLC, 189 AD3d 1, 5 [1st Dept 2020] [same].) And this court agrees with Kaplan's contention that these allegations are inherently incredible. Even so, disregarding those allegations would not undermine any claim that plaintiff might assert based solely on the initial (alleged) theft of the life-insurance policies, thereby leaving that part of the action intact.

This court concludes, though, that notwithstanding the shortcomings of the arguments for dismissal discussed above, the action must still be dismissed in its entirety. The complaint suffers from an obvious and fatal defect that Kaplan does not address: The body of the complaint does not include any allegation against Kaplan, in particular—or even mention her name.[FN6] Rather, it refers only to actions taken by "defendants," collectively, without identifying which defendant is being discussed. (See NYSCEF No. 23.) The complaint thus does not satisfy the foundational requirement that it put Kaplan "on notice of the claims against" her. (See e.g. High Definition MRI, P.C. v Travelers Cos., Inc., 137 AD3d 602, 602 [1st Dept 2016].) Given plaintiff's failure to "allege facts sufficiently particular to give the court and [defendants] notice of the transactions [and] occurrences . . . intended to be proved," plaintiff has not stated a cause of action against Kaplan.[FN7] (See e.g. Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, [*3]PLLC, 31 NY3d 1090, 1091 [2018] [alteration in original].)

Because the court concludes that the action is subject to dismissal as against Kaplan under CPLR 3211 for failure to state a cause of action, the court need not, and does not, reach Kaplan's alternative arguments for dismissal under CPLR 3212.

Accordingly, it is

ORDERED that the branch of Kaplan's motion seeking leave to renew is granted; and it is further

ORDERED that on renewal, the branch of Kaplan's motion under CPLR 3211 seeking dismissal of plaintiff's claims against her is granted; and it is further

ORDERED that plaintiff's complaint is dismissed as against all defendants, no costs; and it is further

ORDERED that Kaplan serve a copy of this order with notice of its entry on plaintiff by certified mail, return receipt requested, directed to plaintiff's last-known address, and by email to plaintiff's last-known email addresses ([email protected] and [email protected]); and on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.


DATE 3/21/2025

Footnotes


Footnote 1:Plaintiff's complaint identifies defendant Kaplan in the caption of the action only as "Dr. Kaplan," without giving her first name. (See NYSCEF No. 23 at 1 [reproducing complaint].)

Footnote 2:The record does not reflect how defendants Nicholas and Rodriguez are connected to plaintiff or to the subject matter of this action. The record contains an affidavit of service for Kaplan, but no affidavits of service for Nicholas or Rodriguez, indicating that they were never served. They have not appeared.

Footnote 3:Because plaintiff is pro se, this action was initially a non-e-filed case. It was converted to e-filing in 2024.

Footnote 4:In November 2022, during discovery, plaintiff filed a proposed order to show cause, seeking leave to introduce a video of her mother in support of her claim. (See NYSCEF No. 48 at 1-2.) The proposed OSC also indicated that plaintiff was seeking $6 million in damages. (See id. at 2.) In December 2022, this court declined to sign the order to cause, explaining that the court "does not understand why movant seeks to introduce a 'phone video' of her late mother in pursuit of a $6M case that appears to have no merit." (Id.)

Footnote 5:CPLR 2221 (e) requires that a motion for leave to renew "be based upon new facts not offered on the prior motion." This requirement "is a flexible one, and it is within the court's discretion to grant renewal upon facts known to the moving party at the time of the original motion," as long as the movant "offers a reasonable excuse for the failure to present those facts on the prior motion." (JRP Holding, Inc. v Pratt, 113 AD3d 823, 824 [2d Dept 2014].) Here, Kaplan's papers on this motion explain that the additional information on service has been provided to correct an error in the prior affidavit of service (see NYSCEF No. 6 at ¶¶ 7-8); and to respond to the concerns about service expressed in this court's prior order (see id. at ¶ 27; compare NYSCEF No. 7). The court concludes that this justification is sufficient to satisfy the "new facts" requirement of CPLR 2221 (e).

Footnote 6:A court may, in appropriate circumstances, exercise its discretion "to consider a motion to dismiss on grounds not raised in the motion papers." (Dental Soc. of State v Carey, 92 AD2d 263, 264 [3d Dept 1983], citing Arce v Sybron Corp., 82 AD2d 308, 311 [2d Dept 1981]; see also Tirado v Miller, 75 AD3d 153, 157-158 [2d Dept 2010] [holding that when, as here, the moving papers include a general relief clause (see NYSCEF No. 8 at 17), a court may "consider an alternative ground for granting the motion, consistent with the ultimate relief that was requested, and which was based upon material contained in the court's own file"].)

Footnote 7:The body of the complaint does not identify any specific action taken by either Nicholas or Rodriguez, or mention them by name, either. (See NYSCEF No. 23.) Instead, it is "pleaded against all defendants collectively without any specification as to the precise tortious conduct charged to a particular defendant." (Aetna Cas. & Sur. Co. v Merchants Mut. Ins. Co., 84 AD2d 736, 736 [1st Dept 1981].) This impermissible group pleading deprives defendants of the notice of plaintiff's claims to which they are entitled. (See id.) The claims against Nicholas and Rodriguez are subject to dismissal on this ground as well. Nicholas and Rodriguez have not, to be sure, moved for dismissal on this ground; but, as noted above, the record suggests that they were not served, and it is unclear whether they ever received notice of this action at all. This court concludes that these deeply unusual circumstances present one of the rare instances in which the court may properly dismiss claims against defendants sua sponte. (See Ray v Chen, 148 AD3d 568, 569 [1st Dept 2017] [explaining that although a nisi prius court has the power to dismiss an action sua sponte, that power "should be used sparingly and only in extraordinary circumstances"] [internal quotation marks omitted].)