United States District Court, S.D. New York
OPINION & ORDER
ABRAMS, United States District Judge:
Dorothy Lemon sued Defendants Jerrietta Hollinger and Ms.
Hollinger's law firm, Ganz & Hollinger, P.C.,
asserting claims for negligence, tortious interference,
fraud, and breach of contract. Defendants move to dismiss the
Complaint for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). For the reasons set forth below,
that motion is granted except as to Plaintiffs
tortious-interference claim. No later than January 12, 2018,
however, Plaintiff is directed to show cause why the Court
should not also dismiss that claim.
was a close and long-time friend of Allan Curry, who died on
or about October 11, 2013, and who was represented by Ms.
Hollinger and her firm before his death. Compl. ¶¶
7, 16 (Dkt. 1). This is a dispute about whether Defendants
unlawfully deprived Plaintiff of various gifts-namely,
approximately $175, 000 in shares of stock in a company
called Autoliv, Inc., and $200, 000 in cash-that Plaintiff
alleges Mr. Curry intended to give to her before his death.
The following facts are drawn from the Complaint and are
assumed to be true for purposes of resolving Defendants'
motion to dismiss. See Fernandez v. Zoni Language Ctrs.,
Inc., 858 F.3d 45, 48 (2d Cir. 2017).
to June 2013, Plaintiff was designated as the executor of Mr.
Curry's estate. Compl. ¶ 40. Around that time,
however, Mr. Curry began to suffer from "greatly
declining health." Id. ¶ 8. Plaintiff
alleges that someone told her about Ms. Hollinger and her law
firm, and that Plaintiff passed Ms. Hollinger's name
along to Mr. Curry. Id. ¶ 43. Mr. Curry then
hired Defendants to represent him in drafting a new will and
in conveying gifts "in causa mortis" prior to his
death. Id. ¶¶ 8, 43. In his new will, Mr.
Curry "greatly reduced the amounts he left to"
Plaintiff in favor of a relatively new acquaintance, Alan
Stabile. Id. ¶ 40. Mr. Curry also designated
Mr. Stabile as the new executor of his estate, replacing
Plaintiff. Id. Two months later, Ms. Hollinger
represented both Mr. Curry and Mr. Stabile in a real-estate
deal where Mr. Curry converted an apartment he owned into a
joint tenancy shared by him, Mr. Stabile, and Mr.
Stabile's wife. Id. ¶ 38. Ms. Hollinger
never told Plaintiff that about her representation of Mr.
Stabile. Id. ¶¶ 43, 56.
the following months, Ms. Hollinger also advised Mr, Curry in
his capacity as executor of the estate of his close friend,
Helen Holman, who had passed away. Id. ¶¶
13-14. Mr. Curry was the primary beneficiary of the assets in
the Holman estate, which included shares in Autoliv, Inc.
worth approximately $175, 000. Compl. ¶¶ 13-15, 32.
According to the Complaint, Mr. Curry instructed Ms.
Hollinger and her firm to transfer the Autoliv shares from
the Holman estate to him, and then from him to Plaintiff.
Id. ¶¶ 9-11. Later, Mr. Curry and Ms.
Hollinger met with Autoliv's transfer agent so that Mr.
Curry could re-register the shares in his own name and then
gift the shares to Plaintiff. Id. % 12. Mr. Curry
signed the required forms and instructed Ms. Hollinger to
transfer the shares to Plaintiff, but Ms. Hollinger never
actually completed the transfers. Id. ¶¶
16-19. Ms. Hollinger sold a few thousand dollars' worth
of the shares and returned the proceeds to the Holman estate.
Id. ¶ 17. The remaining shares stayed in that
estate until they were sold to pay taxes. Id.
¶¶ 17, 20. Plaintiff did not receive any of these
proceeds. Id. ¶¶ 20-22. According to the
Complaint, Ms. Hollinger did not inform Plaintiff that she
was entitled to the Autoliv stock. Id. ¶ 42.
his death, Mr. Curry also gave Plaintiff a check-which he had
instructed Ms. Hollinger to write out and which he had
signed-for $200, 000. Id., ¶¶ 44-48. Ms.
Hollinger told Plaintiff that she could deposit it, and
Plaintiff did so, Id. ¶¶ 48-49. According
to the Complaint, Mr. Stabile later learned of this gift and
told Plaintiff that he would call the police if she did not
return the money. Id. ¶ 50. Ms. Hollinger
allegedly assisted Mr. Stabile in getting the funds back by
"caus[ing] Mr. Curry to sign a letter requesting the
return of the funds" and by instructing Plaintiff to
return the money. Id. ¶¶ 50-51. Plaintiff
did as instructed. Id. ¶ 50. According to the
Complaint, Ms. Hollinger did not inform Plaintiff that she
"had no legal obligation to return the funds."
22, 2017, Plaintiff sued Defendants, asserting four causes of
action: (1) negligence based on Ms. Hollinger's failure
to follow Mr. Curry's instructions to deliver the Autoliv
shares, (2) tortious interference with Plaintiff s right to
the shares and the $200, 000 check, (3) fraud based on Ms.
Hollinger's communications with her about the shares and
the check, and (4) breach of contract between Defendants and
Mr. Curry. Compl. ¶¶ 26, 58, 60, 63-65;
see PL Opp'n Mem. at 5 (Dkt. 17). On July 20,
2017, Defendants moved to dismiss the Complaint under Rule
12(b)(6), on August 7, 2017, Plaintiff opposed the motion,
and on August 11, 2017, Defendants filed a reply. SeeDkts.
13, 14, 17, 20.
survive a motion to dismiss under Fed. R. Civ. P, 12(b)(6), a
complaint must plead "enough facts to state a claim to
relief that is plausible on its face." Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Igbat, 556 U.S. 662, 678
(2009). "Where a complaint pleads facts that are
'merely consistent with' a defendant's liability,
it 'stops short of the line between possibility and
plausibility of entitlement to relief.'"
Id. (quoting Twombly, 550 U.S. at 557). On
a Rule 12(b)(6) motion, the question is "not whether
[the plaintiff] will ultimately prevail, " but rather
"whether his complaint [is] sufficient to cross the
federal court's threshold." Skinner v.
Switzer, 562 U.S. 521, 529-30 (2011) (internal quotation
marks omitted). In answering this question, the Court must
"accept all factual allegations as true, but giv[e] no
effect to legal conclusions couched as factual
allegations." Stadnickv. Vivint Solar, Inc.,
861 F.3d 31, 35 (2d Cir. 2017) (quoting Starr v. Sony BUG
Music Entm % 592 F.3d 314, 321 (2d Cir. 2010)).