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Henry v. Logan

March 2, 2010

STEPHEN HENRY, INDIVIDUALLY, AND AS CO-EXECUTOR OF THE ESTATES OF HAROLD HENRY AND ALICE HENRY, AND AS BENEFICIARY OF THE ESTATES OF HAROLD HENRY AND ALICE HENRY; AND MARK HENRY, INDIVIDUALLY, AND AS CO-EXECUTOR OF THE ESTATES OF HAROLD HENRY AND ALICE HENRY, AND AS BENEFICIARY OF THE ESTATES OF HAROLD HENRY AND ALICE HENRY, PLAINTIFFS,
v.
SALLY B. LOGAN, ESQ., INDIVIDUALLY, AND IN HER CAPACITY AS ATTORNEY AND AS PARTNER OR EMPLOYEE OF HODGSON RUSS, LLP, AND IN HER OFFICIAL CAPACITY AS NOTARY PUBLIC, A PUBLIC OFFICER OF THE STATE OF NEW YORK; STEPHEN M. NEWMAN, ESQ., INDIVIDUALLY, AND IN HIS CAPACITY AS ATTORNEY AND AS FORMER PARTNER OR EMPLOYEE OF HODGSON RUSS, LLP; HODGSON RUSS, LLP; AND JOHN DOE AND JANE DOE NOS. 1-5: FORMER AND PRESENT PARTNERS, EMPLOYEES, OR AGENTS OF HODGSON RUSS, LLP: UNKNOWN PARTIES PURSUANT TO CPLR § 1024. DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

This case was originally filed in New York State Supreme Court, Erie County, on November 9, 2005. In accordance with a stipulation of the parties, on November 21, 2007, plaintiffs filed an amended complaint which included a cause of action pursuant to Title 42 U.S.C. § 1983 for the violation of civil rights. Thereafter, defendants removed the case to this court on November 26, 2007 (Item 1). The amended complaint, which is 116 pages long, includes 837 factual averments and 20 causes of action. Only the section 1983 cause of action provides a basis for federal jurisdiction. All remaining causes of action are state law claims. Defendants have moved to dismiss the complaint in its entirety.

BACKGROUND AND FACTS

This case arises from a dispute between siblings regarding a power of attorney allegedly signed by their mother. Plaintiffs Stephen and Mark Henry are co-executors of the estate of Harold and Alice Henry, their deceased parents. At the time of his death in 2002, Harold Henry had an estate plan, including a will, power of attorney, and health care proxy (Item 1, Exh. A, tab 8, ¶ 20). Following Harold's death in 2003, Alice Henry executed a general power of attorney authorizing plaintiffs Stephen and Mark Henry to act on her behalf. Id., ¶ 32. In April 2003, Alice Henry, who had become physically disabled, moved to Elderwood Health Care at Lakewood, a senior care residence. Id., ¶ 60. Plaintiffs allege that by April 2004, Alice Henry lacked the mental capacity to make health care decisions for herself and lacked contractual and testamentary capacity. Id., ¶¶ 66-71.

Plaintiffs allege that defendant Logan "traveled to ElderWood on November 10, 2004 with the intention of communicating with Alice Henry." Id., ¶ 310. Plaintiffs further allege that Ms. Logan induced Alice Henry to revoke her existing power of attorney and to execute a new one which appointed all four Henry children, plaintiffs Mark and Stephen Henry and their siblings, Suzanne Boies and William Henry. Id., ¶¶ 329-30.

As stated above, plaintiffs have managed to fashion 20 causes of action and over 800 factual averments from this relatively simple factual situation. They have voluntarily agreed to withdraw the fourth cause of action, based on the alleged violation of New York Penal Law § 210.35. See Item 19, p. 12. The plaintiffs' claims are as follows:

1. Tortious interference with the estate plan of Alice Henry;

2. Tortious interference with the estate plan, with "aggravating circumstances;"

3. Violation of the Code of Professional Responsibility and the New York Judiciary Law;

4. Violation of New York Penal Law § 210.35 (withdrawn);

5. Violation of New York Executive Law § 135--misconduct by a notary public;

6. Fraud by a notary public in violation of Executive Law § 135;

7. Violation of New York Penal Law § 175.40--issuing a false certificate;

8. Violation of Penal Law § 195.00--"official misconduct;"

9. Violation of New York General Business Law ยง 349(a)--deceptive ...


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