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Decided on December 21, 2007
Sur Ct, Nassau County

335860
The appearance of counsel is as follows: Fox & Lefkowitz 666 Old Country Road Suite 201 Garden City, NY 11530 (Attorneys for Respondent) Garfunkel Wild & Travis 111 Great Neck Road
Great Neck, NY 11020
(Attorneys for Petitioner)
John B. Riordan, J.
This is a miscellaneous proceeding involving the Estate of Abraham Bender ("the decedent"). The decedent's daughter, Phyllis Bender ("Phyllis" or "petitioner") commenced a proceeding against her brother, Michael Bender, as executor of decedent's estate ("Michael" or "the executor"), seeking relief pursuant to SCPA 2102 to force the executor to disclose information and marshal assets for the benefit of Phyllis, who is a one-half residuary beneficiary of the estate. Before this court is Michael's motion to dismiss the petition and Phyllis' cross-motion for leave to amend her petition.
Factual Background
Phyllis and Michael are two of the three children of decedent, who died on April 8, 2004, leaving a will dated May 11, 1996. Pursuant to a stipulation of settlement entered into by all three of the decedent's children, Jeffrey Bender ("Jeffrey"), Phyllis, and Michael, dated October 3, 2006 (the "stipulation"), and a decree of probate dated January 5, 2007, limited letters in decedent's estate were issued to Michael as executor on January 8, 2007. Decedent's will made no provisions for Jeffrey but he received $10,000 pursuant to the stipulation. The will provides for the residuary estate to be divided evenly between Phyllis and Michael.
The primary focus of Phyllis' petition is (1) Bana Electric Corporation ("Bana Electric"), which was established by decedent in 1959, and taken over by Michael in 1980; (2) the property on which Bana Electric is situated, 45 Gazza Boulevard, Farmingdale, NY ("45 Gazza"); and (3) a real estate holding corporation, Bana Realty Corporation ("Bana Realty"), incorporated by Michael in 1980 to hold 45 Gazza.
Procedural Background
A. Petition for Relief Pursuant to 2102
The petition brought by Phyllis seeks information pursuant to SCPA 2102 to determine (1) decedent's interest, at the time of his death, in (a) Bana Electric, (b) Bana Realty and (c) 45 Gazza and (2) whether decedent was owed salary by Bana Electric pursuant to a 1986 document signed by Michael, in which Michael agreed to pay decedent an annual salary of at least $75,000 a year for life. Phyllis argues that Michael, as executor, must pursue recovery of decedent's interest in the above corporate entities and the related real estate as well as any unpaid salary owed to decedent pursuant to the 1986 writing. Additionally, Phyllis asks the court to grant her [*2]attorneys' fees, costs and disbursements.
B. Motion to Dismiss
The executor responded by filing a motion to dismiss, arguing that the documentary evidence conclusively establishes a defense pursuant to CPLR 3211(a)(1), and that the motion for discovery must be dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action. In support of his motion to dismiss, the executor has submitted an affidavit, an affirmation from executor's attorney, and an affidavit from the accountant who prepared the tax returns of the decedent, Bana Electric and Bana Realty. The executor argues that the documentary evidence conclusively shows that the decedent did not have any interest in Bana Electric, since the decedent surrendered his remaining shares of stock to the corporate treasury on October 20, 1980. In his supporting affidavit, the executor refers to annexed photocopies of stock certificates showing the surrender of all of decedent's shares of Bana Electric. The executor also annexed a copy of the corporate minutes of a meeting of the shareholders of Bana Electric on August 10, 1977, when the services of the decedent as president, secretary and treasurer were terminated and it was agreed that decedent would no longer be employed by the corporation. The executor also attached a computer printout from New York State showing that Bana Realty was not incorporated until August 28, 2000.
In the annexed affidavit of the accountant, he states that decedent had told him that decedent had retired and had sold his interest in Bana Electric to Michael. The affidavit further states that at no time did the decedent's tax returns reflect ownership of any interest in Bana Electric or Bana Realty. Photocopies of the personal returns prepared for the decedent for 1996-2003 are attached, along with tax returns for Bana Electric for the same years and for Bana Realty from 2000 to 2003. Further, the affiant states that decedent never claimed to hold any interest in Bana Electric or Bana Realty or to be owed salary by these companies.
C. Cross-Motion to Amend
In response to the executor's motion to dismiss, Phyllis submitted a cross-motion for an order pursuant to CPLR 3025(b) for leave to amend her petition, along with an affidavit in opposition to the motion to dismiss the petition and in support of the cross-motion to amend the petition. The cross-motion seeks to add a claim for repayment of loans allegedly made to Bana Electric out of a joint account that decedent held with his late wife. Petitioner maintains that the documents filed with the court do not fully resolve the claims that she has raised.
Phyllis argues that the decedent's surrender of two stock certificates is not determinative of whether he held any other ownership interest in Bana Electric at the time of his death. Petitioner points out that the tax returns submitted in support of the executor 's position are unsigned photocopies (with the exception of 1996), as are the tax returns submitted for Bana Electric and Bana Realty. Additionally, Phyllis notes that tax returns would not reflect an ownership interest in any year in which the taxpayer did not receive income or dividends, and corporate tax returns would not list a shareholder who did not receive corporate compensation in the pertinent tax year. The corporate minutes from 1977 which were submitted to the court similarly do not address the issue of decedent's ownership interest.
Petitioner further argues that the question of decedent's interest in 45 Gazza, presently held by Bana Realty, is unresolved due to two seemingly conflicting transactions which took place on December 20, 1959. Before the court is an agreement dated December 20, 1959 [*3]between the decedent and Mary Spiegel and Bernard Spiegel. The agreement reflects that Mary Spiegel and Bernard Spiegel were doing business as M.J.P. Associates Co., a partnership, the principal asset of which was 45 Gazza. Pursuant to the agreement, Bernard Spiegel sold his one-half interest in the partnership to the decedent for $17,500, and the agreement states that simultaneously with the execution of the document, Bernard Spiegel will deliver a fully executed full covenant and warranty deed to decedent and Mary Spiegel. Another document before the court, of same date, is an indenture transferring 45 Gazza from Mary Spiegel and Bernard Spiegel doing business as M.J.P. Associates Co., to Bana Electric, in a transfer for no consideration. Petitioner argues that these seemingly conflicting documents cloud title to 45 Gazza, and require further discovery.
In connection with her claim that decedent was owed unpaid salary by Bana Electric pursuant to the 1986 writing, petitioner refers to Michael's admission in a Reply Affidavit filed in Suffolk County Surrogate's Court, in connection with the estate of decedent's wife, Bertha Bender, that Bana Electric paid decedent $125,000 per year until the late 1990's. Phyllis is seeking access to the corporate records of Bana Electric to determine whether the decedent was owed salary at the time of death and to force the executor to bring a claim against Bana Electric if the salary was not paid.
In her last claim, omitted from the original petition, Phyllis claims that the decedent made two loans totaling $100,000 to Bana Electric, and asks to review Bana Electric's corporate records to determine whether the loans were repaid.
D. Affirmation in Opposition to the Cross-Motion
In response to Phyllis' cross-motion, Michael's attorney submitted an affirmation in opposition in which he raises an additional defense, namely, that all of the claims filed by Phyllis are time

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