Preview
FILED: SUFFOLK COUNTY CLERK 06/23/2023 09:06 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 06/23/2023
MOT SEQ 002 - MG
STATE OF NEW YORK _ SUPREME COURT
SUFFOLK COUNTY _ PART 70
YANPING XU,
Plaintiff(s), lndex Number 206004t20u.
-against-
Hon. Paul M. Hensley, AJSC
SUFFOLK COUNry, ET AL.,
Short Form Order on Motion
Defendan S
Upon e-filed documents 19-39, 46-50, and 52 read and considered on defendant
Raymond Van Zwienen's motion to dismiss the complaint insofar as the complaint seeks relief
against such defendant (002), it is hereby
ORDERED that defendant Raymond Zwienen's motion be, and it hereby is, GRANTED,
with defendant Raymond Van Zwienen being entitled to one bill ofcosts (CPLR 8201, 8202) as
taxed by the clerk and upon which bill of costs, judgment shall be entered against plaintiff with
defendant Raymond Van Zwienen to have execution on such judgment.
In this action, plaintiffseeks 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] fl 5) because defendants committed "fraud, ejectment, trespass, tort, and
housing discrimination" (ld. at !f l). Defendant Raymond Van Zwienen (defendant) has moved to
dismiss the complaint insofar as it pleads for reliefagainst defendant (CPLR 321 I [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
3211 lal [7]). In addition to CPLR 3211 (a) (7), defendant's notice of motion indicates that the
motion is grounded on CPLR 3211 (a) (1) and on "res judicata principles" (Notice of Motion
[Dkt. 19]). "On a motion to dismiss pursuant to CPLR 321i, the pleading is to be afforded a
liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the
benefit ofevery favorable inference, and determine only whether the facts as alleged fit into any
cognizable legal theory" (Leon v MartineT, 84 NY2d 83, 87-88, 614 NYS2d 972,974 |994]).
Based upon these precedents, for purposes of defendant's motion to dismiss, this Court
finds that plaintiff and William Van Zwienen (decedent) were manied for fifteen years
(Amended Complaint [Dkt. 3] U 2) immediately preceding decedent's death on September 29,
2016 (ld. !f 4). For the twenty years immediately preceding December 14,2018, plaintiff lived in
a house situated on realty that decedent had purchased before decedent and plaintiff married (ld.
nn2,4). In 2008, decedent transferred title to the realty on which the house stood (realty) to a
trust (ld. !f 4). Defendant "drafted the decedent's trust amendments, last wills, and power of
attorney" (Id. at !l 30).
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FILED: SUFFOLK COUNTY CLERK 06/23/2023 09:06 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 06/23/2023
206004/201,*
Short Form Order on Motion
Page 2
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
upon which plaintiff relies in opposition to this motion (Exhibit A to Affirmation of Andrew C.
Ellsworth [Dkt. 21] [hereafter, first amendment]). The ptain language of the first amendment is:
FOURTH: A new ARTICLE VI(C) shall be added and shall
contain the following language:
"(c) Identity of Successor Trustee(s). If the Settlor does not
exercise Settlor's power to select other successor Trustees during
Settlor's lifetime, the following shall serve as successor Trustee(s)
in the following order of preference upon the incapacity, removal,
resignation, or death ofa Trustee:
1 The successor to WILLIAM H. VAN ZWIENEN shall be
the Settlor's son, RAYMOND E. VAN ZWIENEN
(First Amendment [Dkt. 2l] at 5).
Surrogate's Court proceedings have occurred after decedent's death (Amended
Complaint lT fl 45-46). The gravamen of plaintifls complaint against defendant is that defendant
falsely represents that defendant is the successor trustee to the William H. Van Zwienen
Revocable Trust (ld.), a falsely claimed status that led the surrogate's court to issue an order on
April 5,2018 that denied plaintiff s motion under CPLR 5015 (a) (l) 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 obtain a money judgment against plaintiff (Mafter of
Van Zwienen,202 AD3d 802, 158 NYS3d 861 [2d Dept 2022]: Exhibit D to Affirmation of
Andrew C. Ellsworth [Dkt.28] [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" (Id.). From the
changing ofthe locks and the posting ofthe notice, plaintiff was dispossessed from the realty and
house.
Plaintiff alleges that defendant caused plaintiff to be dispossessed from the realty and
house. Defendant's motion to dismiss first argues that "res judicata principles" preclude this
action because the issue of the identity of the successor tlustee was decided in the surrogate's
court proceedings. "Among lhe res judicata doctrines is collateral estoppel" (Affirmation of
Andrew C. Ellsworth [Dkt. 24] atl}4)t.
I Counsel
improperly blends legal argument and facts in one document (see 22 NyCRR g 202.8 tcl).
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FILED: SUFFOLK COUNTY CLERK 06/23/2023 09:06 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 06/23/2023
2060041202L
Short Form Order on Motion
Page 3
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 fair opportunity to contest the
decision now said to be controlling" (Buechel v Bain,97 NY2d 295, 303-304, 740 NYS2d 252,
257 120011[citation omitted]). "[T]hese principles zre 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. . . . In 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" (.Sradrs, urg ll/ater Co. v
Staatsburg Fire Dist.,72 NY2d 147, 153, 531 NYS2d 876,878 [1988]).
Because defendant's status in this action is in an individual capacity, plaintiff argues that
the parties differ from those in the surrogate's court proceeding where defendant was seeking
relief in defendant's capacity as successor trustee.
The amended complaint ties plaintiffs displacement from the realty and house to
defendant's aflidavit, and, specifically the allegedly false allegation that successor trustee
actually occupied the office of trustee. For plaintiff to win against defendant in this action,
plaintiff must prove that defendant 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 ofdefendant's argument and plaintiffs opposition raises is: When an order ofa
court of competent jurisdiction establishes that an attomey's affidavit is true, may a party to the
action or proceeding in that court who defaulted be collaterally estoppel from relitigating the
issue ofthe affidavit's truth in a different proceeding before a different court?
"An issue is not actually litigated if, tbr example. there has been a default" (Koufman v
Eli Lilly & Co.,65 NY2d 449, 456-457,492 NYS2d 584, 589 [i985]). However, the surrogare's
court April order details gross discovery non-compliance and other misconduct in which plaintiff
engaged in that proceeding. Thus. here, "collateral estoppel may be properly applied to [the]
default]judgment [because] the party against whom preclusion is sought appears in the prior
action, yet willfully and deliberately refuses to participate in those litigarion proceedings, or
abandons them, despite a full and fair opporlunity to do so" (Miller v Falco. I 70 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 initial motion and upon plaintiffs motion to vacate plaintiff s default. Given plaintiff s
misconduct before the surrogate's court, collateral estoppel applies here. Further support for
application of collateral estoppel comes from staatsburg 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
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FILED: SUFFOLK COUNTY CLERK 06/23/2023 09:06 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 06/23/2023
206004n0
Short Form Order on Motion
Page 4
amendment and the Appellate Division's affirmance of the surrogate's court April ordet (lylalter
of Van Zwienen, supra).
Defendant's motion is granted on this ground.
Defendant also moves to dismiss because a defense upon documentary evidence exists.
Specifically, defendant contends that the Appellate Divisions af{irmance ofthe surrogate's court
April order is the documentary evidence that "definitively dispose[s] of plaintiff s case"
(Kalmon Dotgin AfJiliates of Long Island, Inc. v Robert Plan Corp.,284 AD2d 594,594,669
NYS2d 920, 921 [2d Dept 1998]). "To constitute documentary evidence, the evidence must be
unambiguous, authentic, and undeniable such as judicial records and documents reflecting out of
court transactions such as mortgages, deeds, contracts, and any other papers, the contents of
which are essentially undeniable" (Xu v Van Zwienen,212 AD3d 872, 814, 183 NYS3d 475'
479 l2d Dept 2023 ] [intemal quotation marks and citations omitted]).
Here, the surrogate's court April order, the first amendment, and the prior Appellate
Division affirmance of the surrogate's court April order constitute compelling documentary
evidence that this defendant was, at all relevant times, the successor trustee. Thus, because
plaintifls entire claim against defendant is premised on defendant not being the successor
trustee, and because the documentary evidence "utterly refutes plaintiffls factual allegations,"
defendant's motion is granted on CPLR 321 I (a) (1) grounds as well as upon collateral estoppel
(Goshen v Mut. Life Ins. Co. of New York,98 NY2d 314, 326, 746 NYS2d 858, 865 [2002]).
As to the failure to state a cause of action argument, because both plaintiff 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 [1977]). Here, the first amendment shows that plaintiff has no cause of action. At all
relevant times, plaintiff was not the successor trustee, and Raymond Van Zwienan was.
Therefore, dismissal is warranted as to defendant on CPLR 321 1 (a) (7) grounds as well.
Dated Jlcr:,e20,2023
Riverhead, New York
ENTER
Q*,
Hon. Paul M. He ley, AJSC
4 of 4
Preview
FILED: SUFFOLK COUNTY CLERK 06/23/2023 09:06 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 06/23/2023 MOT SEQ 002 - MG STATE OF NEW YORK _ SUPREME COURT SUFFOLK COUNTY _ PART 70 YANPING XU, Plaintiff(s), lndex Number 206004t20u. -against- Hon. Paul M. Hensley, AJSC SUFFOLK COUNry, ET AL., Short Form Order on Motion Defendan S Upon e-filed documents 19-39, 46-50, and 52 read and considered on defendant Raymond Van Zwienen's motion to dismiss the complaint insofar as the complaint seeks relief against such defendant (002), it is hereby ORDERED that defendant Raymond Zwienen's motion be, and it hereby is, GRANTED, with defendant Raymond Van Zwienen being entitled to one bill ofcosts (CPLR 8201, 8202) as taxed by the clerk and upon which bill of costs, judgment shall be entered against plaintiff with defendant Raymond Van Zwienen to have execution on such judgment. In this action, plaintiffseeks 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] fl 5) because defendants committed "fraud, ejectment, trespass, tort, and housing discrimination" (ld. at !f l). Defendant Raymond Van Zwienen (defendant) has moved to dismiss the complaint insofar as it pleads for reliefagainst defendant (CPLR 321 I [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 3211 lal [7]). In addition to CPLR 3211 (a) (7), defendant's notice of motion indicates that the motion is grounded on CPLR 3211 (a) (1) and on "res judicata principles" (Notice of Motion [Dkt. 19]). "On a motion to dismiss pursuant to CPLR 321i, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit ofevery favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" (Leon v MartineT, 84 NY2d 83, 87-88, 614 NYS2d 972,974 |994]). Based upon these precedents, for purposes of defendant's motion to dismiss, this Court finds that plaintiff and William Van Zwienen (decedent) were manied for fifteen years (Amended Complaint [Dkt. 3] U 2) immediately preceding decedent's death on September 29, 2016 (ld. !f 4). For the twenty years immediately preceding December 14,2018, plaintiff lived in a house situated on realty that decedent had purchased before decedent and plaintiff married (ld. nn2,4). In 2008, decedent transferred title to the realty on which the house stood (realty) to a trust (ld. !f 4). Defendant "drafted the decedent's trust amendments, last wills, and power of attorney" (Id. at !l 30). 1 of 4 FILED: SUFFOLK COUNTY CLERK 06/23/2023 09:06 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 06/23/2023 206004/201,* Short Form Order on Motion Page 2 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 upon which plaintiff relies in opposition to this motion (Exhibit A to Affirmation of Andrew C. Ellsworth [Dkt. 21] [hereafter, first amendment]). The ptain language of the first amendment is: FOURTH: A new ARTICLE VI(C) shall be added and shall contain the following language: "(c) Identity of Successor Trustee(s). If the Settlor does not exercise Settlor's power to select other successor Trustees during Settlor's lifetime, the following shall serve as successor Trustee(s) in the following order of preference upon the incapacity, removal, resignation, or death ofa Trustee: 1 The successor to WILLIAM H. VAN ZWIENEN shall be the Settlor's son, RAYMOND E. VAN ZWIENEN (First Amendment [Dkt. 2l] at 5). Surrogate's Court proceedings have occurred after decedent's death (Amended Complaint lT fl 45-46). The gravamen of plaintifls complaint against defendant is that defendant falsely represents that defendant is the successor trustee to the William H. Van Zwienen Revocable Trust (ld.), a falsely claimed status that led the surrogate's court to issue an order on April 5,2018 that denied plaintiff s motion under CPLR 5015 (a) (l) 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 obtain a money judgment against plaintiff (Mafter of Van Zwienen,202 AD3d 802, 158 NYS3d 861 [2d Dept 2022]: Exhibit D to Affirmation of Andrew C. Ellsworth [Dkt.28] [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" (Id.). From the changing ofthe locks and the posting ofthe notice, plaintiff was dispossessed from the realty and house. Plaintiff alleges that defendant caused plaintiff to be dispossessed from the realty and house. Defendant's motion to dismiss first argues that "res judicata principles" preclude this action because the issue of the identity of the successor tlustee was decided in the surrogate's court proceedings. "Among lhe res judicata doctrines is collateral estoppel" (Affirmation of Andrew C. Ellsworth [Dkt. 24] atl}4)t. I Counsel improperly blends legal argument and facts in one document (see 22 NyCRR g 202.8 tcl). 2 of 4 FILED: SUFFOLK COUNTY CLERK 06/23/2023 09:06 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 06/23/2023 2060041202L Short Form Order on Motion Page 3 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 fair opportunity to contest the decision now said to be controlling" (Buechel v Bain,97 NY2d 295, 303-304, 740 NYS2d 252, 257 120011[citation omitted]). "[T]hese principles zre 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. . . . In 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" (.Sradrs, urg ll/ater Co. v Staatsburg Fire Dist.,72 NY2d 147, 153, 531 NYS2d 876,878 [1988]). Because defendant's status in this action is in an individual capacity, plaintiff argues that the parties differ from those in the surrogate's court proceeding where defendant was seeking relief in defendant's capacity as successor trustee. The amended complaint ties plaintiffs displacement from the realty and house to defendant's aflidavit, and, specifically the allegedly false allegation that successor trustee actually occupied the office of trustee. For plaintiff to win against defendant in this action, plaintiff must prove that defendant 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 ofdefendant's argument and plaintiffs opposition raises is: When an order ofa court of competent jurisdiction establishes that an attomey's affidavit is true, may a party to the action or proceeding in that court who defaulted be collaterally estoppel from relitigating the issue ofthe affidavit's truth in a different proceeding before a different court? "An issue is not actually litigated if, tbr example. there has been a default" (Koufman v Eli Lilly & Co.,65 NY2d 449, 456-457,492 NYS2d 584, 589 [i985]). However, the surrogare's court April order details gross discovery non-compliance and other misconduct in which plaintiff engaged in that proceeding. Thus. here, "collateral estoppel may be properly applied to [the] default]judgment [because] the party against whom preclusion is sought appears in the prior action, yet willfully and deliberately refuses to participate in those litigarion proceedings, or abandons them, despite a full and fair opporlunity to do so" (Miller v Falco. I 70 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 initial motion and upon plaintiffs motion to vacate plaintiff s default. Given plaintiff s misconduct before the surrogate's court, collateral estoppel applies here. Further support for application of collateral estoppel comes from staatsburg 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 3 of 4 FILED: SUFFOLK COUNTY CLERK 06/23/2023 09:06 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 06/23/2023 206004n0 Short Form Order on Motion Page 4 amendment and the Appellate Division's affirmance of the surrogate's court April ordet (lylalter of Van Zwienen, supra). Defendant's motion is granted on this ground. Defendant also moves to dismiss because a defense upon documentary evidence exists. Specifically, defendant contends that the Appellate Divisions af{irmance ofthe surrogate's court April order is the documentary evidence that "definitively dispose[s] of plaintiff s case" (Kalmon Dotgin AfJiliates of Long Island, Inc. v Robert Plan Corp.,284 AD2d 594,594,669 NYS2d 920, 921 [2d Dept 1998]). "To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable such as judicial records and documents reflecting out of court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable" (Xu v Van Zwienen,212 AD3d 872, 814, 183 NYS3d 475' 479 l2d Dept 2023 ] [intemal quotation marks and citations omitted]). Here, the surrogate's court April order, the first amendment, and the prior Appellate Division affirmance of the surrogate's court April order constitute compelling documentary evidence that this defendant was, at all relevant times, the successor trustee. Thus, because plaintifls entire claim against defendant is premised on defendant not being the successor trustee, and because the documentary evidence "utterly refutes plaintiffls factual allegations," defendant's motion is granted on CPLR 321 I (a) (1) grounds as well as upon collateral estoppel (Goshen v Mut. Life Ins. Co. of New York,98 NY2d 314, 326, 746 NYS2d 858, 865 [2002]). As to the failure to state a cause of action argument, because both plaintiff 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 [1977]). Here, the first amendment shows that plaintiff has no cause of action. At all relevant times, plaintiff was not the successor trustee, and Raymond Van Zwienan was. Therefore, dismissal is warranted as to defendant on CPLR 321 1 (a) (7) grounds as well. Dated Jlcr:,e20,2023 Riverhead, New York ENTER Q*, Hon. Paul M. He ley, AJSC 4 of 4