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Lemon v. Hollinger

United States District Court, S.D. New York

December 19, 2017


          OPINION & ORDER

          RONNIE ABRAMS, United States District Judge:

         Plaintiff 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.


         Plaintiff 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).

         A. Factual Background

         Prior 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.

         Over 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.

         Before 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." M¶ 53.

         B. Procedural History

         On June 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.


         To 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)).


         A. Jurisdiction ...

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