CPLR R. 3211(a)(3)

Defendants are not entitled to dismissal of the complaint pursuant
to CPLR 3211(a)(1), since they have not demonstrated that the
documentary evidence definitively resolves all material issues of fact,
thereby resulting in the failure of plaintiff's claim as a matter of
law (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]; Foster v Kovner, 44 AD3d 23,
28 [2007]). Accepting as true the facts alleged in the complaint for
the purpose of the motion, according plaintiff the benefit of every
favorable inference, and determining whether the facts as alleged fit
any cognizable legal theory (see Leon v Martinez, 84 NY2d 83,
87-88 [1994]), we reject the argument that defendant Spahn owned her
share of the property individually as a tenant in common, since all of
the individual owners transferred their equity interests in the
property to a family partnership set up for that purpose. Spahn
allegedly violated the terms of the partnership agreement, which
required her to obtain the consent of the remaining partners prior to
selling or assigning her interest in the property.

Defendants are also not entitled to dismissal under CPLR
3211(a)(3), lacks the capacity to sue as co-executrix. A fiduciary has
an obligation to protect the interests of the estate especially where a
co-fiduciary is alleged to have acted to the contrary (see SCPA 2102 [6]; Matter of Wallens, 9 NY3d 117 [2007]; Birnbaum v Birnbaum, 73 NY2d 461 [1989]; see also Matter of Donner, 82 NY2d 574 [1993]).