Eisen v. Dennis Norton, Esq.

Filing 32

OPINION & ORDER re: 22 MOTION for Judgment on the Pleadings. filed by Dennis Norton, Esq. For the reasons set forth above, defendants' motion for judgment on the pleadings is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 22 and to terminate this action. (Signed by Judge Katherine B. Forrest on 3/11/2015) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
JOYCE EISEN,
:
:
Plaintiff,
:
:
-v:
:
DENNIS NORTON,
:
:
Defendant.
:
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 11, 2015

13-cv-6226 (KBF)
OPINION & ORDER

The conduct that gave rise to the events underlying this lawsuit occurred
during the period from 1999 to 2003: the contract at issue was signed in 1999;
defendant performed under that contract between that time and 2003; and plaintiff
signed a release in 2003. Time then passed. A lot of time. More than a decade
later, on September 4, 2013, plaintiff commenced this action. (ECF No. 1.) Plaintiff
alleges claims for breach of contract (Count I), breach of the covenant of good faith
and fair dealing (Count II), unjust enrichment (Count III), breach of fiduciary duty
(Count V), constructive trust (Count VI), and fraud (Count VII).1 (ECF No. 17 (“Am.
Compl.”).) Defendant has raised the obvious defense to plaintiff’s claims that they
are all time-barred. The Court agrees. Defendant has also raised the second and
equally dispositive defense that the release signed in 2003 covers all of plaintiff’s
claims. Again, the Court agrees. For these reasons, and as set forth below, the

1 Plaintiff has dropped her claim for quantum meruit, which was Count IV of her amended
complaint. (See ECF No. 28 at 24 n.17.)

Court GRANTS defendant’s motion for judgment on the pleadings (ECF No. 22) and
dismisses this action.2
I.

FACTS RELEVANT TO THIS MOTION
The pleadings and documents incorporated by reference therein tell the

following story: Plaintiff Joyce Eisen had a brother who passed away in 1999.
Thereafter, plaintiff and defendant Dennis Norton, who is plaintiff’s nephew and
the decedent’s son, entered into a written contract (the “1999 Contract”) pursuant to
which the defendant would challenge his father’s will, which was not as favorable to
either of them as it was to defendant’s stepmother. Plaintiff agreed to fund the
attorney fees involved in such a challenge, and the two parties would split the
proceeds and plaintiff would be repaid on an agreed basis. Defendant was and is a
lawyer licensed to practice law in New York. He did not, however, litigate the will
challenge himself, and instead hired two law firms to do so. The contract was
executed on July 26, 1999. (See Am. Compl. & ex. A.)
As agreed, plaintiff provided the money and funded the lawsuit, and
defendant challenged the will. Both parties then performed their respective
principal obligations under the contract. In 2003, that challenge was resolved
pursuant to a settlement between the stepmother and defendant by way of a
publicly filed Stipulation of Settlement. (Am. Compl. ex C.) The Stipulation of
Settlement refers, on its face, to another separately filed—also public—document, a
Consulting Agreement. (Am. Compl. ex. E.) On June 20, 2003, defendant notified

2

This matter was transferred to the undersigned on March 6, 2015.

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plaintiff of the settlement and stated that, pursuant to the 1999 Contract, he owed
plaintiff $109,034.41, and that she also received a 50% remainder interest in a trust
that owned a piece of real estate. (Am. Compl. ex. B.) He attached an accounting
and further stated, “If this is acceptable to you please sign and return to me the
enclosed release, and I will forward a check in the above amount to you.” (Am.
Compl. ex. B.) The attached accounting did not mention the existence of the
Consulting Agreement, though the Stipulation of Settlement did. (Compare Am.
Compl. ex. B, with Am. Compl. ex. C ¶ 8.) Plaintiff denies that she received a copy
of the Stipulation of Settlement in 2003. (Am. Compl. ¶ 21.)
Plaintiff executed a release (the “Release”) about a month after receiving
defendant’s notification of the settlement. The Release specifically mentions the
existence of the Stipulation of Settlement, and that plaintiff received it. (ECF No.
8-1 (“Release”).) It states that plaintiff:
[r]eleases and discharges DENNIS M. NORTON . . . from
all actions, causes of action, claims, suits, debts, dues,
sums of money, accounts, reckonings, bills, covenants,
contracts, controversies, agreements, promises, variances
. . . claims and demands whatsoever, in law or equity . . .
which [plaintiff] ever had, now have or hereafter can,
shall or may have, for, upon, or by reason of any matter,
cause or thing whatsoever, from the beginning of the
world to the day of the date of this RELEASE, including
but not limited to, all claims arising out of the Estate of
Bruce M. Norton and the letter agreement between
RELEASEE and RELEASOR dated July 26, 1999
pertaining thereto.
(Release.)

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Thereafter, on a number of occasions, plaintiff sought further information
from defendant regarding the settlement terms. (Am. Compl. ¶ 35.) She did not
receive such information, and eventually defendant stopped returning her calls.
(Am. Compl. ¶ 35.) For reasons that are unclear, plaintiff waited until 2012 to
retain counsel. (Am. Compl. ¶ 36.) Counsel performed the routine exercise of
obtaining the Stipulation of Settlement from the public records at the Suffolk
County Surrogate’s Court. (Am. Compl. ¶ 36.) The Consulting Agreement is also in
the Surrogate’s Court public files. (See Am. Compl. ex. E.)
At the end of January 2014, defendant provided plaintiff with a copy of the
Consulting Agreement. (Am. Compl. ¶ 48.) The Consulting Agreement references
an arrangement between defendant and Nor-Court Management, Inc., a company in
which the stepmother served as president—entered into contemporaneously with
the Stipulation of Settlement—pursuant to which he performs certain services and
obtains an ongoing income stream thereby. (See Compl. ¶ 50 & ex. E.) In total,
defendant has received more than $1.2 million dollars in payments pursuant to the
Consulting Agreement. (Am. Compl. ¶ 45.) Plaintiff filed this lawsuit in September
2013. (ECF No. 1.)
II.

STANDARD OF REVIEW
This motion for judgment on the pleadings is brought pursuant to Rule 12(c)

of the Federal Rules of Civil Procedure. “After the pleadings are closed—but early
enough not to delay trial—a party may move for judgment on the pleadings.” Fed.
R. Civ. P. 12(c). “The standard for granting a Rule 12(c) motion for judgment on the
pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim.”
4

Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001).
The court must accept as true all factual allegations contained in the complaint and
draw all reasonable inferences in the non-moving party’s favor. Bank of N.Y. v.
First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). “To survive a Rule 12(c)
motion, the complaint ‘must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’” Id. (quoting Hayden v. Paterson,
594 F.3d 150, 160 (2d Cir. 2010)). “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. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
“On a 12(c) motion, the court considers ‘the complaint, the answer, any
written documents attached to them, and any matter of which the court can take
judicial notice for the factual background of the case.’” L-7 Designs, Inc. v. Old
Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Roberts v. Babkiewicz, 582
F.3d 418, 419 (2d Cir. 2009)). A complaint is “deemed to include any written
instrument attached to it as an exhibit, materials incorporated in it by reference,
and documents that, although not incorporated by reference, are ‘integral’ to the
complaint.” Id. (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)).
III.

STATUTES OF LIMITATIONS
A fully dispositive ground for dismissal are the applicable statutes of

limitations. All of plaintiff’s claims are subject to limitations periods of six years.
See N.Y. C.P.L.R. § 213; Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 361 (2d Cir.
2013) (“Under New York law, claims of common law fraud and of breach of fiduciary
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duty based on fraud are generally subject to six-year statutes of limitations.”);
Escano v. Freemont Inv. & Loan, No. 13 Civ. 1575(LTS)(GWG), 2013 WL 6388448,
at *3 (S.D.N.Y. Dec. 6, 2013) (under New York law, claims for breach of contract,
breach of the covenant of good faith and fair dealing, unjust enrichment, and breach
of fiduciary duty are subject to a six-year statute of limitations); Ellul v.
Congregation of Christian Bros., No. 09 Civ. 10590(PAC), 2011 WL 1085325
(S.D.N.Y. Mar. 23, 2011) (under New York law, constructive trust claims are subject
to six-year statute of limitations). As more than six years has passed since the
latest date the claims could accrued, they are time-barred, and accordingly must be
dismissed.3
IV.

EFFECT OF RELEASE
In 2003, plaintiff released any claims of any nature that she may have had

against the defendant. Her release specifically covered the contractual
arrangement she had entered into with the defendant relating to Bruce Norton’s
estate, and it specifically released the defendant from having to further account to
plaintiff for future reckonings, controversies, claims, promises, variances, damages,
claims and demands.
Plaintiff now claims that she was duped—that she believed and relied on the
accounting attached to the letter from defendant in June 2003 announcing the
settlement when in fact defendant had reached a secret side arrangement for
additional money from the estate. Notably, plaintiff does not deny she signed the
3 Plaintiffs arguments regarding equitable tolling and equitable estoppel lack merit, as they are
entirely unsupported by factual allegations that are both plausible and relevant.

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Release. Rather, she argues it would be grossly unfair to hold her to it under these
circumstances.
The Release is a binding agreement that plaintiff entered into voluntarily.
While she denies receiving the Stipulation of Settlement, there is no claim that she
was forced to sign the Release under duress of any kind. There is no allegation
that, for instance, she was told to sign immediately or she would not receive her
share; nor is there any allegation that she requested additional information that
she did not receive prior to signing it.
Plaintiff’s claim is essentially fraud in the inducement—that she would not
have entered into the Release but for defendant’s fraud. But she has not brought a
claim based on the Release. Indeed, the complaint makes no mention of the
Release. Additionally, there is no dispute that her own attorney later obtained a
copy of the Stipulation of Settlement simply by obtaining it from the Suffolk County
Surrogate’s Court, where it was publicly filed. There can be no dispute that on its
face this document references the Consulting Agreement that plaintiff claims was
hidden from her, and the public record leaves no doubt that the Consulting
Agreement was itself publicly available.
On these facts, there is no basis for plaintiff to avoid the effect of the Release.
That she may now have more information than she previously had can both be true
and non-actionable under these circumstances.
Plaintiff also argues that defendant owed her a fiduciary duty, and that this
duty encompassed a requirement that defendant disclose material facts to her,

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including that he was receiving additional compensation from plaintiff’s brother’s
estate by way of the Consulting Agreement. Plaintiff’s factual allegations are
insufficient to support this assertion.
Under New York law, one has an obligation to disclose material facts to
another party when (1) one is in a fiduciary relationship with the other party, or (2)
one possesses superior knowledge not readily available to the other party, and
knows the other party is acting on the basis of mistaken knowledge. Aaron Ferer &
Sons Ltd. v. Chase Manhattan Bank, Nat’l Ass’n, 731 F.2d 112, 123 (2d Cir. 1984).
When mistakes of fact may be corrected with reference to the public record, they do
not support a claim. See id.; Sable v. Southmark/Envicon Capital, 819 F. Supp. 324,
333 (S.D.N.Y. 1993) (“The naked assertion of concealment of material facts which is
contradicted by published documents which expressly set forth the very facts
allegedly concealed is insufficient to constitute actionable fraud.” (quoting Decker v.
Massey-Ferguson, Ltd., 534 F. Supp. 873, 880 (S.D.N.Y. 1981))). If a party has
means available to him to obtain the missing facts, he cannot later claim that he
was induced to enter into a transaction by a misrepresentation of those facts.
The facts alleged in the complaint do not support the existence of a fiduciary
relationship between plaintiff and defendant. The fact that defendant is an
attorney is, standing alone, not enough. See In re Hayes, 183 F.3d 162, 169 (2d Cir.
1999) (basis of attorney’s owing fiduciary duty to another individual is an attorneyclient relationship). There is no allegation that defendant was acting as plaintiff’s
attorney with regard to their relationship and, indeed, in his cover letter

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accompanying the 1999 Contract, defendant suggests that plaintiff have an
attorney review the document. What is more, that contract entailed plaintiff paying
fees to other lawyers—retained by defendant—to handle the challenge to
defendant’s father’s will. And the fact that plaintiff and defendant are relatives
does not change this analysis.
At any rate, the facts that plaintiff needed were not hidden. The Release is
one page long, and the Stipulation of Settlement is specifically mentioned in it.
Further, when plaintiff signed the Release, she acknowledged receipt of the
Stipulation of Settlement. Finally, even had she not received the document, it
resides in the public record, along with the Consulting Agreement. On these facts,
there is no basis for a claim that defendant owed plaintiff any special duty, or that
plaintiff lacked access to hidden material facts.4
In her complaint and in her argument on this motion, plaintiff refers to the
accounting attached to the June 2003 letter from defendant as misleading. That
may be so—but plaintiff did not specifically reference her reliance on the truth and
accuracy of that statement in agreeing to the Release, and that accounting does not
erase the reference in the Release to the publicly available Stipulation of
Settlement.

4 It is for these reasons that plaintiff’s arguments based on the little-used “partial statement
doctrine,” which plaintiff has derived from Brass v. American Film Techologies, Inc., 987 F.2d 142,
150 (2d Cir. 1993) and Alliance Industries, Inc. v. Longyear Holdings, Inc., 854 F. Supp. 2d 321
(W.D.N.Y. 2012), also fail.

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V.

CONCLUSION
For the reasons set forth above, defendants’ motion for judgment on the

pleadings is GRANTED.
The Clerk of Court is directed to close the motion at ECF No. 22 and to
terminate this action.
SO ORDERED.
Dated:

New York, New York
March 11, 2015

KATHERINE B. FORREST
United States District Judge

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