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November 15, 1995


The opinion of the court was delivered by: KATZ




 This action was referred to me for general pretrial supervision and dispositive motions requiring a Report and Recommendation, in accordance with 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 4 of the Southern District of New York Rules for Proceedings Before Magistrate Judges. Currently before the Court is Defendants' Motion to Dismiss the Amended Complaint and for Summary Judgment. For the following reasons, I recommend that the motion to dismiss for lack of subject matter jurisdiction be granted, and that the action be dismissed in its entirety.


 Plaintiff Susan I. Lane and her brother, Defendant Kenneth Birnbaum, are partners and joint owners of several properties in Manhattan and Brooklyn; in two of those properties, their mother, Defendant Sylvia Treiber, also is a joint owner. (Amended Complaint and Jury Demand, dated April 6, 1995 ("Amended Complaint"), P 8.) Defendant Kenneth Birnbaum, an attorney admitted to practice in New York, has managed the properties since the partnerships' inception.

 Plaintiff brings this action against her brother and sister-in-law, Kenneth and Frieda Birnbaum, and against her mother, claiming that Kenneth Birnbaum has committed: (1) legal malpractice; (2) fraud; (3) breach of fiduciary duty; (4) violation of a 1991 Stipulation entered into by Plaintiff and Defendant as settlement of an earlier action; and (5) fraudulent concealment. (Amended Complaint PP 28-37, 41-44, 49-54.) Plaintiff also alleges that Defendants Kenneth and Frieda Birnbaum "purchased a house . . . in whole or in part with monies obtained from properties jointly owned by Plaintiff." (Id. P 39.) Plaintiff seeks: (1) compensatory and punitive damages from Defendant Kenneth Birnbaum; (2) the imposition of a constructive trust on the home of Defendants Kenneth and Frieda Birnbaum; (3) the annulment of the 1991 Stipulation; (4) the removal of Defendant Kenneth Birnbaum as manager of the parties' jointly owned properties, a declaration that he was properly terminated by her letter of October 1993, and appropriate damages; and (5) an accounting of the partnership assets, as well as "an accounting and examination of the Birnbaum Defendants' personal finances." (Id. PP A-F.) Plaintiff sets forth no claims against and seeks no damages from Defendant Sylvia Treiber.

 The substantive and procedural history giving rise to Plaintiff's claims is as follows: In 1989, Plaintiff and her mother, Defendant Treiber, brought an action in this Court against Defendant Kenneth Birnbaum, seeking an accounting and other relief with respect to his management of the partnership properties. Lane v. Birnbaum, No. 89 Civ. 6324; see Amended Complaint P 13. The parties settled the action, and the district judge (Hon. Gerard L. Goettel) ordered the suit dismissed on December 14, 1990. (Order, submitted as Exhibit 3 to Defendants' Letter Brief, dated October 31, 1995 ("Defts. Supp.").) The parties subsequently filed a stipulation, memorializing the terms of their agreement, on February 7, 1991. (Stipulation, submitted as Exhibit A to Defendants' Motion to Dismiss, dated May 22, 1995.) Judge Goettel signed the Stipulation as "so ordered." (Id.)

 In July of 1992, Defendant Treiber received a notice from the City of New York, stating that real estate taxes on one of the partnership properties were unpaid. Upon learning of this notice, Plaintiff confronted Defendant Kenneth Birnbaum, but they were unable to reach an agreement. In August of 1993, Plaintiff wrote to Judge Goettel, claiming that the notice was evidence that her brother had violated the terms of their 1991 Stipulation, and requesting the Court's assistance. (Letter to Judge Goettel, dated August 24, 1993, submitted as Defts. Supp. Ex. 4.) Judge Goettel responded:

The case which you filed in 1989 against your brother was dismissed in 1990 as settled on the basis of an extensive stipulation which had been in force during the previous year. Consequently, there is no proceeding presently pending before me. I suggest that you consult counsel concerning your legal rights in the matter.

 (Letter to Susan I. Lane, dated August 31, 1993, submitted as Defts. Supp. Ex. 5.)

 On October 20, 1993, Plaintiff sent her brother a letter purporting to terminate his position as manager of the properties, pursuant to the 1991 Stipulation. Defendant Kenneth Birnbaum has continued to manage the properties. (Amended Complaint PP 26-27.)

 In February of 1994, the City of New York issued a notice of tax foreclosure with respect to one of the properties. Plaintiff and Defendant Treiber commended a bankruptcy proceeding to stay loss of the property. Kenneth Birnbaum subsequently paid an installment of the money owed to prevent foreclosure, and the bankruptcy proceeding was dismissed. *fn1" See Affidavit of Susan I. Lane, dated February 23, 1995 ("Lane Aff."), P 12; Affidavit in Opposition by Kenneth J. Birnbaum, dated March 2, 1995, P 14.

 On December 16, 1994, Plaintiff filed this action in the Eastern District of New York. The original complaint neither named Sylvia Treiber as a party nor stated a claim with respect to violation of the 1991 Stipulation. See Complaint, dated December 16, 1994, passim. On February 13, 1995, Defendants Kenneth and Frieda Birnbaum filed a motion to dismiss, on the grounds that: (1) the court lacked personal jurisdiction over Frieda Birnbaum; (2) the claim of legal malpractice failed to state a claim upon which relief could be granted, or, alternatively, should be determined on summary judgment; (3) the claim of fraud was not pleaded with particularity; (4) no action could be maintained under New York law unless preceded by a formal partnership accounting; (5) Plaintiff failed to plead the necessary elements to impose a constructive trust; and (6) Plaintiff had failed to join Sylvia Treiber, who, as a partner, was a "necessary party" ...

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