The following papers efiled on NYSCEF were used on these motions: 1, 4, 13, 25-30, 36, 38, 42, 44, 48, 56, 61-64, 70-77, 87-116.

Upon the foregoing papers, having heard oral argument ^[FN1] , and due deliberation having been had, the within three motions are determined as follows.

This action arises from an intrafamily dispute. Based on the foregoing documents and this Court's having previously determined motions in this action, it is a fact that as of December [*2]13, 1989, Plaintiff Bronislava Kucher and her late husband Leonid Kucher owned the 1179 shares assigned to Apartment 3B in 2475 East 11th Street, Brooklyn, New York. The building is owned by 2475 East 11th Owners Corp., a cooperative apartment corporation. After the husband's death in 1997, on January 21, 1999, the shares were transferred to Bronislava Kucher and her son James Kucher, as evidenced by Share Certificate No. 704. On September 5, 2018, a new share certificate, No. 776, was issued to "Bronislava Kucher and James Kucher, as JTWROS" (joint tenants with rights of survivorship) (NYSCEF Doc No. 75). The circumstances concerning the issuance of the September 5, 2018 Share Certificate No. 776, reflecting a joint tenancy as opposed to a tenancy in common, underpin this action. Of course, with the shares being held as a joint tenancy, one of them would assume ownership of all the shares upon the death of the other.

Bronislava Kucher alleges that her son James Kucher defrauded her into executing papers causing the cooperative apartment corporation to issue the certificate which reflected a joint tenancy with rights of survivorship. Bronislava Kucher, being an elderly person (she is 91 years old), assumes she will die first, with the resulting effect that her son James Kucher will inherit the shares to Apartment 3B. This, she maintains, is and always was contrary to her desire, which was that both her children, son James Kucher and daughter Elvira Grau, inherit the apartment equally.

James Kucher maintains that he indeed is entitled to inherit the entire apartment and that his mother Bronislava Kucher knew perfectly well what she signed in 2018. That he and his mother be joint tenants with rights of survivorship was all part of his mother's testamentary scheme, he maintains. This was due, in part, to his sister and her husband's having caused the shares for Apartment 3B to be pledged in connection with a loan they took out for their business.

Defendant 2475 East 11th Owners Corp., which was dismissed from the action by this Court on July 24, 2025, claimed, and now, Proposed Defendant Board of Directors of 2475 East 11th Owners Corp., claims, that they did not engage in any improper conduct with respect to issuance of Share Certificate No. 776. They maintain that their refusal, in the absence of production of the current share certificate, to reissue another share certificate reflecting a change in ownership is proper. The Board of Directors urges the Court not to permit Plaintiff to file and serve a second amended complaint since the causes of action would not be viable against them, principally due to statutes of limitations.

Before the Court are three motions: Motion Sequence No. 6 is a motion by Plaintiff Bronislava Kucher to compel her son James Kucher to produce Share Certificate No. 776, dated September 5, 2018. Motion Sequence No. 7 is a motion by Plaintiff Bronislava Kucher for leave to amend the first amended complaint as per the proposed second amended complaint, which in effect substitutes Proposed Defendant Board of Directors of 2475 East 11th Owners Corp. for Defendant 2475 East 11th Owners Corp. Motion Sequence No. 8 is a motion by Defendant James Kucher to dismiss the first amended complaint and to deny Bronislava Kucher's two motions (Motion Seq. Nos. 6 and 7). All three motions also seek relief deemed just and proper by the Court.

Proposed Defendant Board of Directors of 2475 East 11th Owners Corp. opposes Bronislava Kucher's Motion Sequence No. 7 on the grounds of failing to allege independent tortious conduct on its part, the applicability of the business judgment rule, and the statute of limitations.

If there is anything clear to this Court, and it is based on the hearing held by the Court on January 23, 2025 and her signed August 22, 2024 and January 6, 2025 affidavits, it is that Bronislava Kucher wants the subject apartment's shares to be divided equally between her children James Kucher and Elvira Grau. The August 22, 2024 affidavit refers to "joint and equal benefit of my two biological children, James and Ms. Elvira Grau," and "equal benefit of James and his sister, Elvira Grau" (NYSCEF Doc No. 4 at 2). The January 6, 2025 affidavit states:

8. In 2018, as part of the obtaining of re-issuance of the certificate, James orchestrated fraud by amending the certificate to include a right of survivorship through the Board of the Cooperative.

9. That change was made without my knowledge or consent. I then spoke to an attorney about what James had done and the consequences of this amendment. Attorney explained that if I die, 100% of Shares would be inherited by James only, thus leaving my daughter without a penny.

10. Upon realizing that, I tried convince James to remove the right of survivorship from the stock certificate, which he refused. Afterwards, I tried to assign my Shares to my daughter so that she could receive my Shares. However, the Board of Cooperative informed me that I must present an original of the certificate, which James refused to provide to me, although he is in possession of this original certificate that was re-issued in 2018. (NYSCEF Doc No. 38.)

"I want just to share this apartment equally 50 and 50, my daughter and my son" (NYSCEF Doc No. 61 at 8).

THE COURT: Did you ever agree that if you go first, Mr. Kucher, your son should get the half shares that you own?

THE PLAINTIFF: I just want them to have equally divided, my daughter and my son. I have this issue. I don't know the terms, but —

THE PLAINTIFF: I don't want to talk about because it I want them to share this apartment and not more questions about it. (Id. at 8-9.)

The most expedient means by which this desire can be implemented is by Bronislava [*3]Kucher severing the joint tenancy which exists and then assigning her moiety in the resulting tenancy in common to her daughter Elvira Grau. Shares in a cooperative apartment corporation are personalty.^[FN2] A joint tenancy of their ownership can be severed. "It is not the law that the right of survivorship cannot be cut off without the consent of both of the joint owners. Such joint ownership in personal property may be severed and the doctrine of survivorship applies only if the jointure is not severed during the joint lives. This has been clearly settled in Matter of McKelway (221 NY 15). In that case it was held that a joint ownership of personal property is analogous to a similar estate in lands. . . ." (Loker v Edmans, 204 AD 223 [3d Dept 1923]; see Matter of Gorban, 2014 WL 13141285 [Sur Ct, Richmond County 2014] [emphasis added].)

Much of the focus of this litigation has been spent on (1) Bronislava Kucher's attempt to compel her son James Kucher to produce Share Certificate No. 776 so that it can be replaced by a new one reflecting an assignment of Bronislava's interest to her daughter Elvira Grau, and (2) Bronislava's attempt to have the cooperative corporation issue the replacement share certificate. The cooperative apartment corporation has insisted that the original share certificate needed to be produced. It seems that this dispute is rotating in circles without Bronislava Kucher having undertaken the necessary effort to first sever the joint tenancy (cf. Goetz v Slobey, 76 AD3d 954 [2d Dept 2010]). Once the joint tenancy is severed, then the Proposed Defendant Board of Directors of 2475 East 11th Owners Corp. would be under a duty to issue a new share certificate reflecting a tenancy in common, and afterwards the process of assigning Bronislava Kucher's interest to Elvira Grau can be undertaken. The Board of Directors would have to approve the assignment to Elvira Grau. But at least, the severance of the joint tenancy and the creation of a tenancy in common have to occur first.^[FN3] Plaintiff Bronislava Kucher's claims of fraud, undue influence, breach of fiduciary duty, and conversion are ancillary and may even be moot if her goal is merely to transfer her interest to her daughter and this is effectuated through proper procedure. Moreover, despite Defendant James Kucher's refusal to cooperate by producing Share Certificate No. 776, the Court could order its cancellation and a replacement one's issuance through the exercise of its equitable powers (see Gilgoff v Maldonado, 8 Misc 3d 1016[A], 2005 NY Slip Op 51122[U] [Sup Ct, NY County 2005] [partition may be effected voluntarily by mutual consent of the parties or by judicial order upon the application of one or [*4]more co-owners]); cf. Levy v Herson, 127 Misc 2d 634 [Sup Ct, Queens County 1985]).

The point of Plaintiff Bronislava Kucher's motion to compel James Kucher to produce Share Certificate No. 776 is to facilitate transfer of Bronislava's interest to her daughter. James so far has declined to produce the share certificate. He opposes his mother's motion to compel him to do so: "I respectfully submit this Affidavit . . . in opposition to Plaintiff's Motion to Compel (Motion Seq. No. 6) . . ." (NYSCEF Doc No. 105 ¶ 1). Defendant James Kucher dwells on assertions that his mother was aware that she was creating a joint tenancy with rights of survivorship, there was no undue influence, fraud, or conversion, the issuance of the 2018 stock certificate was lawful, and his mother's claim to wanting equal ownership by both children is contradicted by records (see id. ¶¶ 4-6, 12-13). "As joint tenants with rights of survivorship, we each hold an undivided interest in the whole; there is no divisible '50%' share. The Stock Certificate reflects my mother's and my joint ownership of the 1,179 shares of Capital Stock of 2475 East 11th Owners Corp. I lawfully retain the Stock Certificate, and the Co-op maintains official records of ownership. The Stock Certificate is evidence of ownership only and does not confer any unilateral authority to transfer shares. Plaintiff's request for production is legally unnecessary, procedurally improper, and cannot alter her rights or create a separate interest. The motion seeks a document for an improper purpose, attempting to circumvent the legal effect of joint tenancy with rights of survivorship, and must be denied." (Id. ¶ 16.) During oral argument, Defendant James Kucher again insisted that unless both joint tenants with rights of survivorship consent, the joint tenancy is immutable.

Defendant James Kucher is incorrect. His arguments are irrelevant. His mother possesses the right to seek severance of the shares presently held jointly even if she acquiesced previously to a joint tenancy with rights of survivorship (see Matter of Dinger, 150 AD3d 1108, 1109). If she explicitly sought partition of the share ownership, which she did not do, it could be granted (see Chiang v Chang, 137 AD2d 371 [1st Dept 1988]). Desires of a co-owner of a cooperative apartment should be respected despite opposition of another co-owner (see id.). "The incident of the right of survivorship is a characteristic of joint tenancy, but a joint tenancy may be terminated or severed before such right accrues by the act of either joint tenant. A joint tenant, as an incident to his tenure, may always terminate the joint tenancy by transfer or conveyance of his interest. . . . The inherent right of each joint tenant to dispose of his undivided interest is unrestricted. The disposition may take the form of a sale, assignment, gift, mortgage or pledge. Schouler, Personal Property, 5th Ed., sect. 163; 33 Corpus Juris, Joint Tenancy, IV, sect. 10, p. 907." (Matter of Hoffman, 175 Misc 607, 609 [Sur Ct, Queens County 1940]; see Matter of Suter, 258 NY 104 [1932]). A shareholder in a cooperative corporation may make an inter vivos gift of the shares to a child (see Matter of Katz, 142 Misc 2d 1073 [Sup Ct, NY County 1989]).

A court may determine a motion on reasoning not set forth in the parties' papers providing that it does not have a dispositive import (see Tirado v Miller, 75 AD3d 153, 160 [2d Dept 2010]). Further, "[t]he presence of a general relief clause enables the court to grant relief that is not too dramatically unlike that which is actually sought, as long as the relief is supported by proof in the papers and the court is satisfied that no party is prejudiced" (id. at 158). Neither Bronislava Kucher nor James Kucher addressed the issue of severance yet it is apparent to the [*5]Court that in effect such an action is what Bronislava seeks because that would be the most expedient means to achieve her goal of collective ownership of the subject apartment by her two children — whether it was her goal beforehand or just now. Therefore, although she did not discuss severance in her papers and nether did James Kucher, the Court may grant relief which facilitates the two children owning Apartment 3B's shares (see id.). This Court finds that Defendant James Kucher lacks legal support for objecting to the assumption by his sister of his mother's interest in Share Certificate 776, so he is not prejudiced. Its production and the relief ordered below are warranted, especially in light of all motions having included a request for just and proper relief. The cooperative housing corporation and its Board of Directors are not prejudiced; as they have mentioned, this is an internal family dispute.

A court need not decide an issue if the interests of judicial restraint are served: it is a "cardinal principle of judicial restraint [that] if it is not necessary to decide more, it is necessary not to decide more" (PDK Laboratories Inc. v US DEA, 362 F3d 786, 799 [DC Cir 2004, Roberts, J., concurring]). Proposed Defendant Board of Directors of 2475 East 11th Owners Corp. opposes the submitted second amended complaint of Plaintiff, arguing that the asserted causes of action lack merit. This Court need not determine the issues raised by the Board of Directors presently. It may grant leave to amend the first amended complaint by substituting it with the second amended complaint. At a minimum, it brings in the Board of Directors as a party, whose presence is necessary in order to issue a new share certificate effectuating a severance of the joint tenancy and creating a tenancy in common. The Board of Directors is not prejudiced by the granting of the relief ordered below inasmuch as it does not possess a cognizable interest in preventing Bronislava Kucher from achieving her goal of mutual ownership of the apartment by her two children, who presumably would permit their mother to remain until her death. Should this entire effort of Bronislava Kucher to effectuate a collective ownership of the apartment shares in her children not succeed, the Board of Directors can always protect its interests by moving to dismiss the causes of action directed against it, such as through a summary judgment motion. However, the Court contemplates a speedy resolution of this matter, which would moot the allegations against the Board of Directors.

James Kucher's application to dismiss the first amended complaint can be viewed as academic by virtue of this Court permitting Plaintiff Bronislava Kucher to file and serve the second amended complaint (see Taub v Schon, 148 AD3d 1200 [2d Dept 2017]). In any event, his attempt to foreclose her from asserting her allegations against him is not supported by his "documentary evidence." At a minimum, there needs to be discovery with respect to the claims of undue influence, fraud, and conversion, and probably a trial — assuming that this dispute is not rendered academic by virtue of severance of the joint tenancy and assignment of Bronislava's interest to her daughter. In the interim, leave to amend pleadings should be freely given inasmuch as James Kucher is already aware of his mother's position in the dispute between him and her (see Dogwood Residential, LLC v Stable 49, Ltd., 159 AD3d 490 [1st Dept 2018]; Sealy v Clifton, LLC, 68 AD3d 846 [2d Dept 2009]; Pansini Stone Setting, Inc. v Crow & Sutton Assoc., Inc., 46 AD3d 784 [2d Dept 2007]).

"[I]nherent in the very power to act as a court is the further power to regulate litigation for the purpose of preventing abuses, correcting wrongs, and promoting the fair administration of [*6]justice" (Gramfort Realty Corp. v Valentin, 71 Misc 2d 784 [Civ Ct, NY County 1972]). By determining the within motions in the manner described herein — and in effect deferring a disposition of the claims herein against the Board of Directors of 2475 East 11th Owners Corp. — it is believed that the Court has fulfilled this principle.

Accordingly, IT IS HEREBY ORDERED as follows:

(1) (a) Plaintiff Bronislava Kucher's motion to compel Defendant James Kucher to produce Share Certificate No. 776, dated September 5, 2018 (Motion Seq. No. 6), is GRANTED TO THE EXTENT INDICATED HEREIN.

(b) The Board of Directors of 2475 East 11th Owners Corp. shall, no later than October 20, 2025, designate a person or persons and a location at which Defendant James Kucher shall produce the original of Share Certificate No. 776 of 2475 East 11th Owners Corp., dated September 5, 2018. In the event the Board of Directors of 2475 East 11th Owners Corp. fails to do so, the location of production by Defendant James Kucher of the original of Share Certificate No. 776 of 2475 East 11th Owners Corp., dated September 5, 2018, shall be the law office of Phillips Nizer located at 485 Lexington Avenue, 14th Floor, New York, New York 10017.

(c) Defendant James Kucher shall produce the original of Share Certificate No. 776 of 2475 East 11th Owners Corp., dated September 5, 2018, on one of the days of October 21, 22, or 23, 2025, during the hours of 9 a.m. to 5 p.m., to the person or persons at the location designated by the Board of Directors of 2475 East 11th Owners Corp. and, in the event of the failure of the Board of Directors of 2475 East 11th Owners Corp. to make said designation, at the law office of Phillips Nizer located at 485 Lexington Avenue, 14th Floor, New York, New York 10017.

(d) In the event Plaintiff Bronislava Kucher delivers to the Board of Directors of 2475 East 11th Owners Corp. either directly or to said Board of Directors' attorneys, an instrument severing her moiety in the joint tenancy owning 1179 shares of 2475 East 11th Owners Corp. assigned to Apartment 3B in 2475 East 11th Street, Brooklyn, New York, the Board of Directors of 2475 East 11th Owners Corp. shall cancel Share Certificate No. 776, dated September 5, 2018, and issue a replacement share certificate reflecting ownership of the 1179 shares of 2475 East 11th Owners Corp. assigned to Apartment 3B in 2475 East 11th Street, Brooklyn, New York, by Bronislava Kucher and James Kucher as tenants in common, and a corresponding replacement proprietary lease, no later than three business days after the day of delivery of the aforesaid instrument of severance.

(e) Any assignment by Plaintiff Bronislava Kucher of her moiety in the shares of 2475 East 11th Owners Corp. then held by her and James Kucher as tenants in common to a third person shall be processed by the Board of Directors of 2475 East 11th Owners [*7]Corp. as provided for in the by-laws and proprietary lease of 2475 East 11th Owners Corp. within 10 business days after delivery of said assignment.

(f) In the event Plaintiff Bronislava Kucher does not undertake action to cause the issuance of a replacement share certificate for Share Certificate No. 776, dated September 5, 2018, said share certificate shall be held in escrow by the Board of Directors of 2475 East 11th Owners Corp. or their attorneys, subject to a determination on its disposition by the Court upon motion by anyone.

(2) (a) Plaintiff Bronislava Kucher's motion for leave to amend the first amended complaint as per the proposed second amended complaint, which in effect substitutes Proposed Defendant Board of Directors of 2475 East 11th Owners Corp. for Defendant 2475 East 11th Owners Corp. (Motion Seq. No. 7), is GRANTED.

(b) Leave to serve the amended complaint in the proposed form annexed to the moving papers (NYSCEF Doc No. 93), along with a corresponding supplemental summons, is granted and they shall be served upon all parties within five business days after entry of this order.

(c) The said amended complaint shall be verified.

(d) NYSCEF Form EF-23 shall be filed with the County Clerk to provide notice of the amendment of the caption.

(e) Within 30 days after service of the amended complaint, Defendants shall serve an answer to it or otherwise respond thereto as permitted by law.

(3) Defendant James Kucher's motion to dismiss the first amended complaint and to deny Bronislava Kucher's two motions (Motion Seq. No. 8) is DENIED.

(4) A copy of this order with notice of entry shall be served by Plaintiff upon all parties through NYSCEF no later than four business days after its filing on NYSCEF.