Ordered that the order is reversed, on the law, with costs, and the defendants’ motion to dismiss the complaint is denied.
In 1988, months prior to their marriage, Samuel Rubinstein and the defendant Judith Salomon executed an antenuptial agreement (hereinafter the agreement) in which they acknowledged owning certain premises as tenants in common and having granted life estates in the premises to each other. Pursuant to paragraph 7 of the agreement, the parties provided that “if the survivor voluntarily conveys or dies, the premises will be sold with the net selling price to be divided equally.” The agreement further provided that it “shall enure to the benefit of and shall be binding upon the heirs ... of the parties.”
The couple thereafter married, and approximately 10 years later, executed a “Modification Agreement,” which modified paragraph 7 of the agreement by changing the form of ownership from tenancy in common to joint tenancy with rights of survivorship, and provided that “upon the sale of premises, the survivor agrees to pay the deceased’s heirs, one half the net proceeds of said sale.” It further provided, inter alia, that “[e]ach party represents to the other that he or she has done and will do nothing to encumber title to the premises, except for the lien of the existing mortgage, if any.” Moreover, the modification agreement provided that “[i]n all other respects, the parties do hereby ratify and confirm [the agreement].”
In 2002 Samuel Rubinstein (hereinafter the decedent) died, and in 2003 Salomon executed a deed (hereinafter the deed) conveying her interest in the subject premises to a revocable living trust that she had created, the defendant Salomon asset management trust. The plaintiffs, heirs of the decedent, commenced the instant action against the defendants alleging, inter alia, that by conveying the premises to the trust, Salomon had conveyed and encumbered the property in violation of the terms of the agreement and modification agreement, requiring that the premises be sold and the heirs receive their share of the proceeds. The plaintiffs sought, among other things, a judgment
The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), (2), and (7), annexing various documents to their motion papers, including the complaint, the agreement, the modification agreement, and the deed by which Salomon transferred title of the premises to the trust. The defendants argued, inter alia, that the complaint failed to state a cause of action because the transfer of the premises to the trust did not constitute an “encumbrance” in violation of the modification agreement, nor a “sale” under the terms of the modification agreement such that Salomon owed a duty to pay to the plaintiffs their one-half share of any proceeds. The defendants also argued that the documentary evidence conclusively established that no such “sale” or “encumbrance” occurred. In addition, since the premises were not “encumbered” in violation of the modification agreement and no “sale” took place triggering the plaintiffs’ right to half of the proceeds, the defendants argued that there was no justiciable controversy, and thus, the court lacked subject matter jurisdiction over the action.
In opposition to the defendants’ motion, the plaintiffs argued, inter alia, that Salomon’s transfer of the premises to the trust constituted an “encumbrance” on the property such that she breached the provision in the modification agreement which provided that she would “do nothing to encumber title to the premises.” They also argued that the modification agreement did not supersede or alter the provision of the agreement which provided that if Salomon “voluntarily convey[ed]” the premises, the premises “would be sold with the net selling price to be divided equally.” Thus, the plaintiffs argued that a justiciable controversy existed and their complaint stated cognizable causes of actions.
The Supreme Court granted the defendants’ motion to dismiss the complaint. We reverse.
“A motion to dismiss pursuant to CPLR 3211 (a) (7) ‘will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law’ ” (Palo v Cronin & Byczek, LLP,
Viewing the allegations in the complaint in the light most favorable to the plaintiffs (see Leon v Martinez,
The defendants’ remaining contentions are without merit. Rivera, J.P, Goldstein, Skelos and Balkin, JJ., concur.