Preview
FILED: SUFFOLK COUNTY CLERK 06/20/2023 02:13 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/20/2023
MOT SEQ 001 - MG
STATE OF NEW YORK _ SUPREME COURT
SUFFOLK COUNTY _ PART 70
YANPING XU,
Plaintiff(s), Index Number 206004120
-against-
Hon. Paul M. Hensley, AJSC
SUFFOLK COUNTY, ET AL.,
Short Form Order on Motion
Defendan S
Upon e-filed documents 9-15,40-45, and 5l read and considered on defendant Michelle
Jablonsky's CPLR 3211 (a) (7) motion to dismiss the complaint insofar as the complaint seeks
reliefagainst such defendant (001), it is hereby
ORDERED that defendant Jablonsky's motion be, and it hereby is, GRANTED, with
defendant Michelle Jablonsky being entitled to one bill of costs (CPLR 8201,8202) as taxed by
the clerk and upon which bill of costs, judgment shall be entered against plaintiff with defendant
Michelle Jablonsky to have execution on such judgment.
In this action, plaintiff seeks recovery against the many defendant under the United States
Constitution, the New York Constitution, and several federal and several state statutes (Amended
Complaint [Dkt.3]'li 5) because defendants committed "fraud, ejectment, trespass, tort, and
housing discrimination" (ld. at fl 1). Defendant Michelle Jablonsky (defendant) has moved to
dismiss the complaint insofar as it pleads for relief against defendant (CPLR 3211 [a] [7]).
"A party may move for judgment dismissing one or more causes of action asserted
against [the party] on the ground that ... the pleading fails to state a cause of action" (CPLR
l2l1 [a] [7]). "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a
liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the
benefit of every favorable inference, and determine only whether the facts as alleged fit into any
cognizable legal theory" (Leon v Martinez. 84 NY2d 83, 87-88, 614 NYS2d 972,974 U9941).
Based upon these precedents, for purposes of defendant's motion to dismiss, this Court
finds that plaintiff and William Van Zwienen (decedent) were married for fifteen years
(Amended Complaint [Dkt. 3] fl 2) immediately preceding decedent's death on September 29,
2016 0d. fl 4). For the twenty years immediately preceding December 14, 201 8, plaintiff lived in
a house situated on realty that decedent had purchased before decedent and plaintiff married (Id.
fl fl 2, 4). In 2008, decedent transferred title to the realty on which the house stood (realty) to a
trust (ld. fl 4). Defendant "drafted the decedent's trust amendments, last wills, and power of
attomey" (ld. at !f 30).
Insofar as relevant here, the William H. Van Zwienen Revocable Trust dated July 15,
2008 was amended by the First Amendment to the William H. Van Zwienen Revocable Trust
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NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/20/2023
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Shon Form Order on Motion
Page 2
upon which plaintiff relies in opposition to this motion (Exhibit 1 to Memorandum of Law in
Opposition [Dkt.4l] [hereafter, first amendment]). The plain language ofthe first amendment is:
FOURTH: A new ARTICLE V(C) shall be added and shall
contain the following language:
"(c) Identitv ol Successor Trustee(s). lf the Settlor does not
exercise Settlor's power to select other successor Trustees during
Settlor's lifletime, the following shall serve as successor Trustee(s)
in the lollowing order of preference upon the incapacity, removal,
resignation, or death of a Trustee:
I The successor to WILLIAM H. VAN ZWIENEN shall be
the Settlor's son. RAYMOND E. VAN ZWIENEN
(First Amendment [Dkt.4l] at 5).
Surrogate's Court proceedings have occurred after decedent's death (Amended
Complaint [Dkt. 3] fl 29). Defendant swore to an affidavit on March 12, 2018 knowing that
Raymond E. Van Zwienen (successor trustee) would, through counsel, rely on such document
(ld. fl 30, Exhibit C to Affirmation of Lisa L. Shrewsberry [Dkt. 12]). The affidavit explained
decedent's wishes regarding disposition of decedent's estate insofar as defendant came to know
such wishes in defendant's role as decedent's estate planning attomey (Exhibit C to Affirmation
of Lisa L. Shrewsberry [Dkt l2] [hereafter, Jablonsky Aff.]).
The gravamen ol plaintift's complaint against defendant is that defendant "falsely swore,
for example. that [Raymond] Van Zwienen was the successor trustee" which led the surrogate's
court to issue an order on Aprit 5, 2018 (Amended Complaint [Dkt. 3] at fl 3l) that denied
plaintifls motion under CPLR 5015 (a) (1) to vacate plaintifls default in a surrogate's court
proceeding that successor trustee brought against plaintiff to recover possession of the realty and
house and to obrain a money judgment against plaintiff (Exhibit B to Affirmation of Lisa L.
Shrewsberry [Dkt. ll] [hereafter, surrogate's court April order]). The surrogate's court April
order empowered the Suffolk County Sheriff to take possession of the property and to remove
plaintiff from it.
On December 14,2018, four Suffolk County Deputy Sheriffs entered the house on the
realty (house) and changed the locks (Amended Complaint [Dkt. 3] fl 8). Those four Suffolk
County Deputy Sheriffs (deputies) are named defendants. The deputies posted a notice on the
house setting forth, "These premises have been put in the possession of the landlord pursuant to
the Court order. Only the landlord or his representative may enter or remain" (ld.). From the
changing of the locks and the posting ofthe notice, plaintiff was dispossessed from the realty and
house.
Plaintilf alleges that defendant violated judiciary law section 487 by engaging in lraud or
deceit that caused plaintiff to be dispossessed from the realty and house. Defendant's motion to
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FILED: SUFFOLK COUNTY CLERK 06/20/2023 02:13 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/20/2023
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Short Form Order on Motion
Page 3
dismiss first argues that collateral estoppel preclude this action because the issue of the identity
olthe successor trustee was decided in the sunogate's court proceedings.
Collateral estoppel "precludes a party from relitigating in a subsequent action or
proceeding an issue clearly raised in a prior action or proceeding and decided against that party
or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New
York Tel Co.,62 NY2d 494,500,478 NYS2d 823,826 [1984]). Collateral estoppel applies when
"[t]here [is] an identity of issue which has necessarily been decided in the prior action and is
decisive of the present action, and there must have been a full and lair opportunity to contest the
decision now said to be controlling" (Buechel v Boin,97 NY2d 295, 303-304, 740 NYS2d 252,
257 [20011 [citation omitted]). "[T]hese principles are not to be mechanically applied as a mere
checklist. Collateral estoppel is an elastic doctrine and the enumeration of these elements is
intended as a framework, rather than as a substitute, for analysis. . . . ln the end, the fundamental
inquiry is whether relitigation should be permitted in light of what are often competing policy
considerations, including faimess to the parties, conservation of the resources of the court and
the litigants, and the societal interests in consistent and accurate results" (^Srdars, urg llater Co. v
Staatsburg Fire Dist.,72NY2d 147,153,531 NYS2d 876, 878 [1988]).
Because the parties in this actiondiffer from those in the surrogate's court proceeding in
which the surrogate's court April order was entered, plaintiff concludes that collateral estoppel
does not apply. Further, plaintiff contends that because the surrogate's cou( did not address or
even have belore it the judiciary law claim plaintill now asserts, the specific issue here has not
been previously litigated.
The amended complaint ties plaintifl-s displacement from the realty and house to
defendant's affidavit, and, specifically the allegedly false allegation that successor trustee
actually occupied the office of trustee. For ptaintiff to win against defendant in this action,
plaintit'f must prove that successor trustee did not occupy the office of trustee when the
surrogate's court proceeding was commenced and throughout it. Therefore, properly understood,
the specific issue this branch ol defendant's argument and plaintifls opposition raises is: When
an order of a court of competent jurisdiction establishes that an attomey's affidavit is true, may a
party to the action or proceeding in that court who defauited be collaterally estoppel from
relitigating the issue of the affidavit's truth in a different proceeding before a different court?
..An issue is r.rot actually litigated ii. fbr example. there has been a default" (Kaufman v
Eli Lilly & co., 65 NY2d 449, 456-457 ,492 NYS2d 584, 589 [1985]). I lorv()ver, the surrogate's
coun April order details gross discovery non-compliance and other misconduct in which plaintitT
.ngug.d in that proceeding. Thus. here, "collateral estoppel may be properl-v- applied to [the]
dei'aultl ludgment [because] rhe parly against rvhom preclusiot] is sought arppears in the prior
aclion. yet wiltfirlly and delibcrately reluses to participate in thosc litigation proceedings. or
abandons thern. despite a lirll anri tair opportunity to do so" (Miller v Falco' 170 AD3d 707. 709.
95 NYS3d 334.336-337 [2d Dept 2019]).
The issue ofwho was the successor trustee was squarely before the surrogate's court, and
the surrogate's court April order demonstrates that such court considered that very question on
the initiaimotion and upon plaintifls 5015 motion to vacate plaintifls default. Given plaintifls
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FILED: SUFFOLK COUNTY CLERK 06/20/2023 02:13 PM INDEX NO. 206004/2022
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Short Form Order on Motion
Page 4
misconduct before the surrogate's court, collateral estoppel applies here. Further support fbr
application of collateral estoppel comes fiom Staalsburg ll/ater Co., supra, which guides trial
courts to apply collateral estoppel with an eye toward practicality. Here, the question of who is
the successor trustee presents a pure question of law put to rest against plaintiff by the first
amendment that plaintiff submitted. Defendant's motion to dismiss on collateral estoppel
grounds is granted.
Both parties argued this motion as a collateral estoppel motion, so no prejudice arises
from defendant having labelled the motion as one to dismiss only under CPLR 3211 (a) (7) md
not under CPLR 321I (a) (5).
As to the thilure to state a cause ofaction argument, because both plaintilf and defendant
submitted evidentiary material this Court considered, the standard is that dismissal should occur
if plaintiff does not have a cause of action (Guggenheimer v Ginzberg' 43 NY2d 268' 401
NYS2d 182 I9771). Here, the first amendment shows that plaintiff has no cause of action. At all
relevant times, plaintii-f was not the successor trustee. and Raymond Van Zwienan was.
Theretbre. dismissal is warranted as to defendant.
Dated : June 20.2023
Riverhead, New York
ENTER
f*,
Hon. Paul M. H sley, AJSC
4 of 4
Preview
FILED: SUFFOLK COUNTY CLERK 06/20/2023 02:13 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/20/2023 MOT SEQ 001 - MG STATE OF NEW YORK _ SUPREME COURT SUFFOLK COUNTY _ PART 70 YANPING XU, Plaintiff(s), Index Number 206004120 -against- Hon. Paul M. Hensley, AJSC SUFFOLK COUNTY, ET AL., Short Form Order on Motion Defendan S Upon e-filed documents 9-15,40-45, and 5l read and considered on defendant Michelle Jablonsky's CPLR 3211 (a) (7) motion to dismiss the complaint insofar as the complaint seeks reliefagainst such defendant (001), it is hereby ORDERED that defendant Jablonsky's motion be, and it hereby is, GRANTED, with defendant Michelle Jablonsky being entitled to one bill of costs (CPLR 8201,8202) as taxed by the clerk and upon which bill of costs, judgment shall be entered against plaintiff with defendant Michelle Jablonsky to have execution on such judgment. In this action, plaintiff seeks recovery against the many defendant under the United States Constitution, the New York Constitution, and several federal and several state statutes (Amended Complaint [Dkt.3]'li 5) because defendants committed "fraud, ejectment, trespass, tort, and housing discrimination" (ld. at fl 1). Defendant Michelle Jablonsky (defendant) has moved to dismiss the complaint insofar as it pleads for relief against defendant (CPLR 3211 [a] [7]). "A party may move for judgment dismissing one or more causes of action asserted against [the party] on the ground that ... the pleading fails to state a cause of action" (CPLR l2l1 [a] [7]). "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" (Leon v Martinez. 84 NY2d 83, 87-88, 614 NYS2d 972,974 U9941). Based upon these precedents, for purposes of defendant's motion to dismiss, this Court finds that plaintiff and William Van Zwienen (decedent) were married for fifteen years (Amended Complaint [Dkt. 3] fl 2) immediately preceding decedent's death on September 29, 2016 0d. fl 4). For the twenty years immediately preceding December 14, 201 8, plaintiff lived in a house situated on realty that decedent had purchased before decedent and plaintiff married (Id. fl fl 2, 4). In 2008, decedent transferred title to the realty on which the house stood (realty) to a trust (ld. fl 4). Defendant "drafted the decedent's trust amendments, last wills, and power of attomey" (ld. at !f 30). Insofar as relevant here, the William H. Van Zwienen Revocable Trust dated July 15, 2008 was amended by the First Amendment to the William H. Van Zwienen Revocable Trust 1 of 4 FILED: SUFFOLK COUNTY CLERK 06/20/2023 02:13 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/20/2023 206004/20?a Shon Form Order on Motion Page 2 upon which plaintiff relies in opposition to this motion (Exhibit 1 to Memorandum of Law in Opposition [Dkt.4l] [hereafter, first amendment]). The plain language ofthe first amendment is: FOURTH: A new ARTICLE V(C) shall be added and shall contain the following language: "(c) Identitv ol Successor Trustee(s). lf the Settlor does not exercise Settlor's power to select other successor Trustees during Settlor's lifletime, the following shall serve as successor Trustee(s) in the lollowing order of preference upon the incapacity, removal, resignation, or death of a Trustee: I The successor to WILLIAM H. VAN ZWIENEN shall be the Settlor's son. RAYMOND E. VAN ZWIENEN (First Amendment [Dkt.4l] at 5). Surrogate's Court proceedings have occurred after decedent's death (Amended Complaint [Dkt. 3] fl 29). Defendant swore to an affidavit on March 12, 2018 knowing that Raymond E. Van Zwienen (successor trustee) would, through counsel, rely on such document (ld. fl 30, Exhibit C to Affirmation of Lisa L. Shrewsberry [Dkt. 12]). The affidavit explained decedent's wishes regarding disposition of decedent's estate insofar as defendant came to know such wishes in defendant's role as decedent's estate planning attomey (Exhibit C to Affirmation of Lisa L. Shrewsberry [Dkt l2] [hereafter, Jablonsky Aff.]). The gravamen ol plaintift's complaint against defendant is that defendant "falsely swore, for example. that [Raymond] Van Zwienen was the successor trustee" which led the surrogate's court to issue an order on Aprit 5, 2018 (Amended Complaint [Dkt. 3] at fl 3l) that denied plaintifls motion under CPLR 5015 (a) (1) to vacate plaintifls default in a surrogate's court proceeding that successor trustee brought against plaintiff to recover possession of the realty and house and to obrain a money judgment against plaintiff (Exhibit B to Affirmation of Lisa L. Shrewsberry [Dkt. ll] [hereafter, surrogate's court April order]). The surrogate's court April order empowered the Suffolk County Sheriff to take possession of the property and to remove plaintiff from it. On December 14,2018, four Suffolk County Deputy Sheriffs entered the house on the realty (house) and changed the locks (Amended Complaint [Dkt. 3] fl 8). Those four Suffolk County Deputy Sheriffs (deputies) are named defendants. The deputies posted a notice on the house setting forth, "These premises have been put in the possession of the landlord pursuant to the Court order. Only the landlord or his representative may enter or remain" (ld.). From the changing of the locks and the posting ofthe notice, plaintiff was dispossessed from the realty and house. Plaintilf alleges that defendant violated judiciary law section 487 by engaging in lraud or deceit that caused plaintiff to be dispossessed from the realty and house. Defendant's motion to 2 of 4 FILED: SUFFOLK COUNTY CLERK 06/20/2023 02:13 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/20/2023 206004/20n Short Form Order on Motion Page 3 dismiss first argues that collateral estoppel preclude this action because the issue of the identity olthe successor trustee was decided in the sunogate's court proceedings. Collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel Co.,62 NY2d 494,500,478 NYS2d 823,826 [1984]). Collateral estoppel applies when "[t]here [is] an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and lair opportunity to contest the decision now said to be controlling" (Buechel v Boin,97 NY2d 295, 303-304, 740 NYS2d 252, 257 [20011 [citation omitted]). "[T]hese principles are not to be mechanically applied as a mere checklist. Collateral estoppel is an elastic doctrine and the enumeration of these elements is intended as a framework, rather than as a substitute, for analysis. . . . ln the end, the fundamental inquiry is whether relitigation should be permitted in light of what are often competing policy considerations, including faimess to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results" (^Srdars, urg llater Co. v Staatsburg Fire Dist.,72NY2d 147,153,531 NYS2d 876, 878 [1988]). Because the parties in this actiondiffer from those in the surrogate's court proceeding in which the surrogate's court April order was entered, plaintiff concludes that collateral estoppel does not apply. Further, plaintiff contends that because the surrogate's cou( did not address or even have belore it the judiciary law claim plaintill now asserts, the specific issue here has not been previously litigated. The amended complaint ties plaintifl-s displacement from the realty and house to defendant's affidavit, and, specifically the allegedly false allegation that successor trustee actually occupied the office of trustee. For ptaintiff to win against defendant in this action, plaintit'f must prove that successor trustee did not occupy the office of trustee when the surrogate's court proceeding was commenced and throughout it. Therefore, properly understood, the specific issue this branch ol defendant's argument and plaintifls opposition raises is: When an order of a court of competent jurisdiction establishes that an attomey's affidavit is true, may a party to the action or proceeding in that court who defauited be collaterally estoppel from relitigating the issue of the affidavit's truth in a different proceeding before a different court? ..An issue is r.rot actually litigated ii. fbr example. there has been a default" (Kaufman v Eli Lilly & co., 65 NY2d 449, 456-457 ,492 NYS2d 584, 589 [1985]). I lorv()ver, the surrogate's coun April order details gross discovery non-compliance and other misconduct in which plaintitT .ngug.d in that proceeding. Thus. here, "collateral estoppel may be properl-v- applied to [the] dei'aultl ludgment [because] rhe parly against rvhom preclusiot] is sought arppears in the prior aclion. yet wiltfirlly and delibcrately reluses to participate in thosc litigation proceedings. or abandons thern. despite a lirll anri tair opportunity to do so" (Miller v Falco' 170 AD3d 707. 709. 95 NYS3d 334.336-337 [2d Dept 2019]). The issue ofwho was the successor trustee was squarely before the surrogate's court, and the surrogate's court April order demonstrates that such court considered that very question on the initiaimotion and upon plaintifls 5015 motion to vacate plaintifls default. Given plaintifls 3 of 4 FILED: SUFFOLK COUNTY CLERK 06/20/2023 02:13 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/20/2023 206004t?0^ Short Form Order on Motion Page 4 misconduct before the surrogate's court, collateral estoppel applies here. Further support fbr application of collateral estoppel comes fiom Staalsburg ll/ater Co., supra, which guides trial courts to apply collateral estoppel with an eye toward practicality. Here, the question of who is the successor trustee presents a pure question of law put to rest against plaintiff by the first amendment that plaintiff submitted. Defendant's motion to dismiss on collateral estoppel grounds is granted. Both parties argued this motion as a collateral estoppel motion, so no prejudice arises from defendant having labelled the motion as one to dismiss only under CPLR 3211 (a) (7) md not under CPLR 321I (a) (5). As to the thilure to state a cause ofaction argument, because both plaintilf and defendant submitted evidentiary material this Court considered, the standard is that dismissal should occur if plaintiff does not have a cause of action (Guggenheimer v Ginzberg' 43 NY2d 268' 401 NYS2d 182 I9771). Here, the first amendment shows that plaintiff has no cause of action. At all relevant times, plaintii-f was not the successor trustee. and Raymond Van Zwienan was. Theretbre. dismissal is warranted as to defendant. Dated : June 20.2023 Riverhead, New York ENTER f*, Hon. Paul M. H sley, AJSC 4 of 4