FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO.
62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
To commence the statutory time for appeals
as of right (CPLR 5513[a]), you are advised
to serve a copy of this order, with notice of
entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
TASHERA SIMMONS, INDEX NO. 62907t2024
Plaintiff, DECISION/ORDER
Motion Seq. 1
-against-
DESIREE LINDSTROM, as Co-Administrator of the Estate
of Earl Simmons, SASHA SIMMONS, as Co-Administrator
of the Estate of Earl Simmons, XAVIER SIMMONS, as Co-
Administrator of the Estate of Earl Simmons, SEAN
SIMMONS, as Co-Administrator of the Estate of Earl
Simmons, and TACOMA SIMMONS, as Co-Administrator
of the Estate of Earl Simmons,
Defendants.
EVERETT, J.
Upon consideration of the papers filed in the New York State Courts Electronic Filing
System (NYSCEF) Doc Nos. 13-47, relative to the motion by defendants Desiree Lindstrom and
Sasha Simmons (the Co-Administrators or defendants), in their capacity as Administrators of the
Estate of Earl Simmons (the Estate) to dismiss the amended complaint (CPLR 32ll lal Ul, [5],
and [7]); declare that (i) the Estate is the "sole owner of all intellectual property rights (including
all copyrights and trademark rights) that Earl Simmons acquired during his marriage to Plaintiff
as well as any and all other trademarks and intellectual property rights that belonged to Earl
Simmons at the time of his death; (ii) except as specifically set forth in five Letters of Direction
signed by Earl Simmons, Plaintiff has no income interest and is not otherwise entitled to any
monies of any kind generated by or attributable to services rendered by Earl Simmons, and/or to
1 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
copyrights and trademark rights Earl Simmons acquired during his marriage to Plaintiff and/or to
any other intellectual property rights owned by Earl Simmons; and (iii) Plaintiff has no approval
rights or any other rights incident to any alleged ownership in connection with any intellectual
property owned by Earl Simmons irrespective of when such rights were obtained or acquired by
Earl Simmons"; if the motion to dismiss the action is denied, dismiss the action against Xavier
Simmons, Sean Simmons, and Tacoma Simmons; and award sanctions and costs, the Court
determines as follows:
Backeround
This is an action for declaratory judgment, money damages, and attorneys' fees. The case
involves Tashera Simmons' suit against the Estate of Earl Simmons (Estate). Earl Simmons (Earl
Simmons or decedent) was known by the name professional name DMX until his death in April
2021. Plaintiff seeks a declaratory judgment that the settlement agreement, entered into during her
divorce from Earl Simmons in2016, provided for ownership of 50% of decedent's intellectual
property (IP), including copyright, trademark, publicity rights, and union residuals. The second
cause of action alleges a breach of contract. Earl Simmons maintained through his life that the
agreement only provided for royalty payments, not ownership, as do two of his children who are
serving as administrators to his estate and are unrelated to plaintiff.
Defendants Desiree Lindstrom and Sasha Simmons represent the Estate. Although named,
Xavier Simmons, Sean Simmons, and Tacoma Simmons were suspended as administratorsin2}24
and the action as against each of them should be dismissed. They are plaintiff s children with Earl
Simmons. It is unknown why they were suspended, but they did try to enter into an agreement
after Earl Simmons' death to transfer the Estates' IP to plaintiff shortly before their suspension.
Only Desiree Lindstrom and Sasha Simmons have appeared in this action.
2 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
In the amended complaint (NYSCEF Doc No. l5), the nature of the action is stated as
follows:
This is an action for declaratory judgment, money damages, and attorneys' fees
arising out of Defendant's continued refusal to acknowledge and honor the
intellectual property rights duly transferred to Tashera from her ex-husband, Earl
Simmons ("Earl"), in their Stipulation of Settlement and Judgment of Divorce
resolving their divorce action, among other claims. Since Earl's death in202l,the
Estate of Earl Simmons (the "Estate"), by the actions of the Co-Administrators
acting on behalf of the Estate, has wrongfully deprived Tashera of the substantial
monetary benefits due to her by virtue of her interest in Earl's intellectual property.
The causes of action are for a declaratory judgment and breach of contract.
In the affirmation in support of the motion (NYSCEF Doc No. l4), the attorney for the Co-
Administrators sets forth the following background:
4. Earl Simmons ("Earl"), a legendary hip hop artist known as "DMX" in the music
and entertainment world, died intestate on April 9,2021, survived by 14 children
as his sole intestate distributees.
5. The Action was commenced by Earl's former spouse, Tashera Simmons
("Plaintiff'or "Tashera"), ond arises out of the settlement of the matrimonial action
resulting in Plaintiff and Earl's 2016 divorce (the "Matrimonial Action," Simmons
v. Simmons, Westchester Cty. Sup. Ct. Index No. 1063/2013).
6. Plaintiff and Earl had four children together: co-defendants Xavier, Tacoma, and
Sean, and non-party Praise Simmons ("Praise").
7. Following Earl's death, various petitions and cross-petitions for Temporary
Letters of Administration and for full Letters of Administration were filed by: (i)
Xavier, Tacoma, and Sean (sometimes hereinafter collectively referred to as
"Tashera's Children" or her "Three Children"), who were then the three adult
children of Earl and Plaintiff (Praise then being a minor); (ii) Sasha, an adult child
of Earl and Patricia Trejo; and (iii) Desiree, Earl's fianc6 at the time of his death
and the mother and court-appointed Guardian of the Property of their minor son,
Exodus.
8. After a brief contested proceeding for the issuance of Temporary Letters of
Administration, the Westchester County Surrogate's Court (the "Surrogate's
Court") entered an Order and issued Temporary Letters of Administration on
October 22,2021to Tashera's Children (the "Temporary Letters," see Surrogate's
Court, File No. 2021-1409).
9. After certain discovery in the Surrogate's Court and following negotiations
amongst counsel for the Co-Administrators and Tashera's Children (sometimes
hereinafter collectively referred to as "Defendants"), the Defendants entered into a
Stipulation of Settlement, dated as of October 4, 2022, resolving their dueling
petitions and cross-petitions for letters of administration and agreeing, inter alia,
3 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
that all five of the Defendants would serve as the co-administrators of the Estate
(the "Administrators' Stipulation," a copy of which is annexed as Exhibit B).
10. Sometime later, the Defendants filed a bond with Sunogate's Court, and -
pursuant to that court's November 6,2023 Order - the Temporary Letters issued to
Tashera's Children were revoked and full Letters of Administration issued to the
Defendants (the "Letters of Administration," a copy of which is annexed as Exhibit
c).
11. Less than five months later, having found evidence of wrongdoing by Tashera's
Children whilst acting under the Temporary Letters, the Co-Administrators
petitioned in the Surrogate's Court, by Order to Show Cause, dated March 20,2024,
for an order, inter alia, immediately suspending and ultimately permanently
removing Tashera's Children as administrators of the Estate pursuant to SCPA 711
and719 (the "Removal Petition," see Surrogate's Court, File No. 2021-1409).
12. On the April 17,2024 return date of the Order to Show Cause, Tashera's
Children were suspended indefinitely by order from the bench pending the outcome
of a proceeding to determine their permanent removal. On April 22,2024, an Order
Appointing Temporary Co-Administrators issued reflecting the suspension of
Tashera's Children (the "Suspension Order," a copy of which is annexed as Exhibit
D).
13. Notwithstanding the Suspension Order, ffid Plaintiff and her counsel's
knowledge of same, the Amended Complaint in this Action nurmes the Co-
-
Administrators and Tashera's Children all in the purported capacity of "Co-
Administrators" - as defendants.
The Co-Administrators' attomey asserts that plaintiff "claims (the "Ownership Claims")
that she has a 50 percent ownership interest in any and all intellectual property, including
copyrights and trademarks, he acquired during their marriage (collectively, the "DMX Marital
IP")"; that plaintiff and Earl were married on August 9, 1998 and the decedent released several
albums under the professional trade name DMX during the marriage; that on January 8,2013, a
matrimonial action was commenced, and settled by stipulation, dated June 28, 2016 (2016
Settlement); that on November 3, 2017, plaintiff sought an Order holding Earl in contempt for
violating the 2016 settlement and judgment, which was withdrawn and resulted in the 2018
Settlement; that "consistent with the settlement ... , in lieu of the QDRO Earl signed five Letters
of Direction directed at Universal Music Publishing Group (UMPG), ASCAP, SoundExchange,
Def Jam Records, and Her Royal Majesty's Records d/b/a Bodog Music (collectively, the "Five
4 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
LODs")"; that in "the over two years between Earl's execution of the documents in accordance
with the settlement and Earl's Apnl202l death, pursuant to the Five LODs, Plaintiff received 50%
of Earl's royalty income attributable to only those portions of certain recordings (i.e., those from
between August 9, 1998 and January 8, 2013.)"; that after the divorce and 2018 Settlement, Earl
continued to use the DND( Marks and other entities, and entered into agreements; that plaintiff
"was not aparty to the Def Jam Agreement, and did not license the DMX Marks."
With respect to the plaintiff s claim for "payment of alleged child support and spousal
support arrears in the sum of $214,000 which were provided for in the 2016 Settlement," Co-
Administrators' attorney argues that the 2018 Settlement addressed the child support and spousal
support arrears indicating plaintiff "had earned more than she was entitled to and that the excess
sums would be applied against Earl's future obligations."
A pertinent clause central to the dispute states:
The wife shall receive by QUADRO fifty percent of the husband's intellectual
property rights, which shall include but not be limited to royalties from Universal
Music & ASCAP, publishing, mechanical, public performances, and
synchronization.
Legal Standards
Motion to Dismiss (CPLR 3211)
ln Bailey v City of New York (228 AD3d 713, 7 L4-715 l2d Dept 20241), the Court stated
the standard for review of a motion to dismiss:
On a motion to dismiss a complaint pursuant to CPLR 32ll (a) (7), the court must
"accept the facts as alleged in the complaint as true, accord [the] plaintiff[ ] the
benefit of every possible favorable inference, and determine only whether the facts
as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83,
87-88 t199al; see Connaughton v Chipotle Mexican Grill, Inc.,29 NY3d l37,l4l
l2}l7l). "At the same time, however, allegations consisting of bare legal
conclusions are not entitled to any such consideration. Dismissal of the
complaint is warranted if the plaintiff fails to assert facts in support of an element
of the claim, or if the factual allegations and inferences to be drawn from them do
not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican
5
5 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
Grill, Inc.,29 NY3d at l4l-142 [citations and internal quotation marks omitted];
see Browne v Lyft, Inc.,2l9 AD3d 445, 446 120231; Everett v Eastchester Police
Dept,,l27 AD3d 1131, ll32l20l5l).
(See Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc.,
37 NY3d 169,17512021); Polite v Marquis Marriot Hotel,l95 AD3d 965,967 [2d Dept 2021);
Coe v Toyota Motor N. Am., Inc., 150 AD3d 667,668 [2d Dept 2017).)
Declaratory Judgment
With respect to the Court issuing declaratory relief in a motion to dismiss, in DiGiorgio v
I109-1113 Manhattan Ave. Partners, LLC (102 AD3d 725,728 [2d Dept 2013]), the Court
explained:
Pursuant to CPLR 3001, "[t]he supreme court may render a declaratory judgment .
. . as to the rights and other legal relations of the parties to ajusticiable controversy"
(CPLR 3001). "[T]he demand for relief in the complaint shall specifr the rights and
other legal relations on which a declaration is requested" (CPLR 3017 [b]). A
motion to dismiss the complaint in an action for a declaratory judgment "presents
for consideration only the issue of whether a cause of action for declaratory relief
is set forth, not the question of whether the plaintiff is entitled to a favorable
declaration" (Staver Co. v Slcrobisch, 144 AD2d 449, 450 [1988]; see Rockland
Light & Power Co. v City of New York,289 NY 45, 5I U942)). Thus, "where a
cause of action is sufficient to invoke the court's power to render a declaratory
judgment . . . as to the rights and other legal relations of the parties to a justiciable
controversy, a motion to dismiss that cause of action should be denied" (Matter of
Tilcon N,Y., Inc. v Town of Poughkeepsie,8T AD3d 1148, 1150 [2011] [citations
and internal quotation marks omitted]; see St. Lowrence Univ. v Trustees of Theol.
School of St. Lawrence Univ.,20 NY2d 317,325 t19671; Rockland Light & Power
Co. v City of New York,289 NY at 51). However, where the court, deeming the
material allegations of the complaint to be true, is nonetheless able to determine, as
a matter of law, that the defendant is entitled to a declaration in his or her favor, the
court may enter a judgment making the appropriate declaration (see Hoffmanv City
of Syracuse, 2 NY2d 484, 487 U957); German Masonic Temple Assn. v City of
New York,279 NY 452,457 [939]; Washington County Sewer Dtst. No. 2 v White,
177 AD2d204 U992); Law Research Serv. v Honeywell, Inc.,31 AD2d 900, 901
U969]). By contrast, if the material allegations of the complaint, taken as true,
implicate "factual issues such that the rights of the parties cannot be determined as
a matter of law, a declaration upon a motion to dismiss is not permissible" (Matter
of Tilcon N.Y., Inc. v Town of Poughkeepsie,8T AD3d at 1151; see Nadel v Costa,
91 AD2d 976U9831;Verityv Larkin,lS AD2d 842U963D.
6 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
Breach of Contract
In Dee v Rakower (112 AD3d 204,208-209 lzd Dept 20131), the Court noted: "The
essential elements for pleading a cause of action to recover damages for breach of contract are the
existence of a contract, the plaintiff s performance pursuant to the contract, the defendant's breach
of his or her contractual obligations, and damages resulting from the breach (see Elisa Dreier
Reporting Corp. v Global NAPs Networks, Inc.,84 AD3d 122, 127 [(2d Dept) 20ll]; Brualdi v
IBERIA, Lineas Aereas de Espafia, S.A. , 79 AD3d 959, 960 [(2d Dept) 201 0]; JP Morgan Chase
v J.H. Elec. of N.Y., Inc.,69 AD3d 802, 803 [(2d Dept) 2010]; Furiav Furia,116 AD2d 694,695
[(2d Dept) 1986])." (See South Rd. Assoc., LLC v International Bus. Machs. Corp.,4NY3d272,
277-278 [2005]; Canzonav Atanasio,l lS AD3d 837, 838-839l2d Dept 20141.)
Discussion
Defendants' motion to dismiss is granted in part. As an initial matter, the Court finds that
collateral estoppel precludes plaintiff s claims that the 2016 settlement agreement conferred an
ownership in 50% of decedent's copyright and trademark.
Collateral estoppel prohibits the litigation of claims which were necessarily decided in a
prior action where the party to be precluded had a full and fair opportunity to be heard. Generally,
"collateral estoppel effect will only be given to matters 'actually litigated and determined' in a
prior action" (Kaufman v Eli Lilly & Co.,65 NY2d 449,456 [985]). However, a stipulation may
also be binding in a subsequent action between the parties if the parties have manifested an
intention to that effect (Matter of Susan UU. v Scott W.,119 AD3d lll7,l120 [3d Dept 2014];
see Schober v Hudson Val. Humane Socy. for Prevention of Cruelty to Animals, Inc., 89 AD3d
715,717 [2d Dept 201l]).
7 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
Here, plaintiff expressly raised the issue of whether the 2016 settlement agreement
conferred an ownership interest in decedent's copyright and trademark during proceedings related
to plaintiff s contempt motion in 2017. It is undisputed that the subsequent consent order which
concluded those proceedings did not specifically confer such ownership despite otherwise
modiff ing the 20 I 6 agreement.
Moreover, plaintifftestified under oath during those proceedings that she understood that
the consent order concluded the litigation related to the parties' divorce, which would necessarily
include any further dispute regarding interpretation of the 2016 settlement agreement. Under the
circumstances of this case, the Court will not, in effect, reopen those proceedings to reinterpret the
parties' 2016 settlement agreement, particularly where the party best positioned to contest a
contrary interpretation is now deceased (see Matter of Hua Fan v Wen Zong Yu,9l AD3d 952l2d
Dept20l2l; Matter of Timothy J.T. v Karen J.H.,251AD2d 1036 [4th Dept 1998]). Even if the
Court were to consider plaintiff s arguments on the merits, the Court would still hold the 2016
settlement agreement does not confer ownership in decedent's intellectual property.
InLandmarkVentures, Inc. v H5 Tech., Inc. (152 AD3d 657,658-659l2d Dept 20171), the
Court stated:
A court's fundamental objective in interpreting a contract is to determine the parties'
intent from the language employed and to fulfill their reasonable expectations (see
St. John's Univ., N.Y. v Butler Rogers Baskett Architects, P.C.,92 AD3d 761,764
12012); l3l Heartland Blvd. Corp. v C.J. JonCorp.,82 AD3d 1188, ll89 [2011]).
In so doing, "[i]t is the role of the courts to enforce the agreement made by the
parties-not to add, excise or distort the meaning of the terms they chose to include,
thereby creating a new contract under the guise of construction" (NML Capital v
Republic of Argentina, 17 NY3d250,259-260 [2011]; see Riverside S. Planning
Corp. v CRP/Extell Riverside, L.P.,13 NY3d 398,404 [2009]). Although words
are generally afforded their ordinary meaning, "technical words are to be given their
generally accepted technical meaning" (HNC Realty Co. v Bay View Towers Apts.,
64 ADzd 417, 425 [1978]), and "interpreted as usually understood by the persons
in the profession or business to which they relate" (22 NY Jur 2d, Contracts $ 239;
see Madison Ave. Leasehold, LLC v Madison Bentley Assoc. LLC,30 AD3d 1, 8
8 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
12006),affd8NY3d 59 [2006]; Estate of Hatchv NYCO Mins.,245 AD2d746,747
lleeTl).
The Court inGivati v Air Techniques, Inc.,(104 AD3d 644,645 [2d Dept 2013]) instructed
that"a court should not read a contract so as to render any term, phrase, or provision meaningless
or superfluous (see God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6
NY3d 371,374 [2006]; Lawyers' Fundfor Client Protection of Stare of N.Y. v Bank Leumi Trust
Co. of N.Y.,94 NY2d 398, 404 [2000]; Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63
NY2d 396, 403 [ 98a]; McQuade v McQuade, 67 AD3d 867, 869 [2009]; Hudson Val. Props. &
Rentals v (Jrsuline Provincialate, E. Province of U.5.,221AD2d 507, 509 [1995])." The Court
continued that "[i]nstead, 'the entire contract must be reviewed and '[p]articular words should be
considered, not as if isolated from the context, but in the light of the obligation as a whole and the
intention of the parties as manifested thereby...."' (Givati at 645.) In addition, any written
provision purporting to transfer intellectual property rights involving a copyright must be clear and
unequivocal, and that any ambiguity or doubt concerning the scope of the rights assigned must be
construed in favor of the author ofthe copyright (see Jim Henson Productions, Inc. v JohnT. Brody
Assocs., Inc.,16 F Supp 2d259,285 [SD NY 1997]).
Here, the 2016 settlement agreement does not unequivocally assign ownership of
decedent's copyrighted works or trademark and, indeed, makes no mention of ownership or title
to such property. Instead, plaintiff proffers an interpretation of the phrase "intellectual property
rights" to include ownership, but had that phrase meant ownership, then there would be no need
to define those rights further in the subsequent clause, all tellingly limited to various categories of
royalty payments (see Gary Friedrich Enterprises, LLC v Marvel Enterprises, 1nc.,837 F Supp 2d
337 [SD NY 2011]). Indeed, to find that the phrase "intellectual property rights" meant ownership
in this context would violate a central tenant of contract interpretation by rendering superfluous
9 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
the subsequent recitation of royalty payments encompassed by the phrase (see Suffolk County
Water Auth. v Village of Greenport,2l AD3d947,948 [2d Dept 2005]).
Under the circumstances of this case, the agreement's lack of any appraisal or valuation of
decedent's intellectual property establishes that the parties did not intend to actually transfer title
to the property (see Matter of Goldstein v Plotnicki,30l AD2d 483,484 [lst Dept 2003]), as a
distributive award of ownership in a divorce dissolution would not be possible without a valuation
of the intellectual property (see A.C. v J.O.,40 Misc 3d 1236[A] [Kings County 2013]). Instead,
due to federal prohibition on the involuntary transfer of copyright ownership during a divorce
dissolution, the rights to money derived from a copyright are subject to equitable distribution, but
the exclusive rights of ownership always remain with the author (see 17 USC $ 201[e]; Rodrigue
v Rodrigue,218 F3d 432lsth Cir 20001). Therefore, plaintiffs claims that the 2016 settlement
agreement conferred ownership rights in decedent's intellectual property is dismissed, including
the first cause of action seeking declaratory relief in its entirety.
Plaintiff s claim that the agreement included the transfer of decedent's publicity rights must
also be dismissed since New York did not recognize an independent common-law right of publicity
in20l6, and the statutory right under the Civil Rights Law ($$ 50, 51) at the time was an aspect
of the right of privacy, not property (see Stephano v News Group Publs.,64 NY2d 174, 182
[1e84]).
Similarly, plaintifls claim that the settlement agreement included union residuals from
various organizations is not supported by the plain language of the agreement, which omits any
reference to such revenue. Moreover, since union residual payments are the product of union labor
agreements (see Broadcast Arts Productions, Inc. v Screen Actors Guild, |nc.,673 F Supp 701
[SD NY 1987]), and reflect continuing payment for decedent's labor in various entertainment
10
10 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
mediums, those payments plainly do not relate to any intellectual property rights contemplated by
the agreement.
The Court finds that the "intellectual property rights co-ownership agreement" purportedly
signed by plaintiff in August 2023 void ab initio since the purported co-administrators lacked legal
authority to bind the Estate at the time of its execution, and, in any event, failed to adhere to the
internal notice and voting process set forth in the September 2022 settlement agreement extending
the temporary letters of administration.
Dismissal is premature, however, regarding plaintiff s breach of contract claim related to
$214,000 in alleged child support arears. It is well established that, pursuant to CPLR 32ll (a)
(7), an affidavit used by a defendant to attack the sufficiency of a pleading will seldom if ever
warrant dismissal unless such affidavit conclusively establishes that plaintiff has no cause of action
(see Rovello v OroJino Realty Co., 40 NY2d633,636 U9761). Here, defendants submit the affidavit
of decedent's former lawyer, who avers that she investigated the transfer of money pursuant to
several income withholding orders in2017 and found money an excess of $214,000 had been
transferred to plaintiff. Since plaintiff disputes this contention under oath, dismissal is not
appropriate at the pleading stage.
Finally, since defendants Xavier Simmons, Sean Simmons, and Tacoma Simmons were
suspended from serving as co-administrators in April 2024, and therefore do not currently
represent decedent's Estate, they are dismissed from this action and the caption is amended
accordingly.
Conclusion
Deeming the material allegations of the complaint to be true, the Court is nonetheless able
to determine, as a matter of law, that defendants are entitled to declarations in their favor. The
11
11 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
material allegations of the complaint, taken as true, do not implicate factual issues such that the
rights of the parties cannot be determined as a matter of law.
The motion by defendants Desiree Lindstrom and Sasha Simmons to dismiss the amended
complaint is granted in part. The Court declares that as the Estate is the sole owner of all
intellectual property rights, including all copyrights and trademark rights, which Earl Simmons
acquired during his marriage to plaintiff, as well as any and all other trademarks and intellectual
property rights that belonged to Earl Simmons at the time of his death; that except as specifically
set forth in the five Letters of Direction signed by Earl Simmons, plaintiff has no income interest
and is not otherwise entitled to any monies of any kind generated by or attributable to services
rendered by Earl Simmons, and/or to copyrights and trademark rights Earl Simmons acquired
during his marriage to plaintiff, or to any other intellectual property rights owned by Earl Simmons;
and that plaintiff has no approval rights or any other rights incident to any alleged ownership in
connection with any intellectual property owned by Earl Simmons irrespective of when such rights
were obtained or acquired by Earl Simmons. That branch of the motion to dismiss the action
against Xavier Simmons, Sean Simmons, and Tacoma Simmons is granted.
The remaining issue which survives dismissal is plaintiff s breach of contract claim related
to $214,000 in alleged child support arrears, which is not dismissed.
The parties remaining contentions do not merit different result.
Accordingly, it is,
ORDERED that the motion to dismiss by defendants Desiree Lindstrom and Sasha
Simmons is granted in part and denied in part; and it is further
ADruDGED and DECLARED that as the Estate is the sole owner of all intellectual
property rights, including all copyrights and trademark rights, that Earl Simmons acquired during
72
12 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
his maniage to plaintiff, as well as any and all other trademarks and intellectual property rights
that belonged to Earl Simmons at the time of his death; and it is further
ADJUDGED and DECLARED that except as specifically set forth in the five Letters of
Direction signed by Earl Simmons, plaintiff has no income interest and is not otherwise entitled to
any monies of any kind generated by or attributable to services rendered by Earl Simmons, andlor
to copyrights and trademark rights Earl Simmons acquired during his marriage to plaintiff or to
any other intellectual property rights owned by Earl Simmons; and it is further
ADJUDGED and DECLARED that plaintiff has no approval rights or any other rights
incident to any alleged ownership in connection with any intellectual property owned by Earl
Simmons irrespective of when such rights were obtained or acquired by Earl Simmons; and it is
further
ORDERED the action against Xavier Simmons, Sean Simmons, and Tacoma Simmons is
dismissed and the caption is amended as follows:
-----x
TASHERA SIMMONS,
Plaintiff,
-against-
DESIREE LINDSTROM, as Co-Administrator of the Estate
of Earl Simmons, SASHA SIMMONS, as Co-Administrator
of the Estate of Earl Simmons,
13
13 of 14
FILED: WESTCHESTER COUNTY CLERK 04/08/2025 03:04 PM INDEX NO. 62907/2024
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/07/2025
ORDERED that counsel for the moving parties shall serve a copy of the Decision and
Order with notice of entry upon the Clerk of the Court, who is directed to mark the Court's records
to reflect the change in the caption; and it is further
ORDERED that plaintiff s breach of contract claim, related to $214,000 in alleged child
support rurears, is severed from the remaining causes of action which have been dismissed and
shall continue.
The foregoing constitutes the Decision and Order of the Court.
Dated: White Plains, New York ENTER:
April7,2025
HON. DAVID F. EVERETT, J.S.C.
Filed in NYSCEF
L4
14 of 14
