| Williams v Eason |
| 2008 NY Slip Op 02834 [49 AD3d 866] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Wandalyn Williams, Appellant, v John H. Eason et al.,Respondents. |
—[*1] Mary T. Lucere PLLC, Seaford, N.Y., for respondents.
In an action, inter alia, to recover damages for fraud and to impose a constructive trust oncertain real property, the plaintiff appeals (1), as limited by his brief, from so much of an order ofthe Supreme Court, Nassau County (Warshawsky, J.), entered September 28, 2005, as denied, aspremature, that branch of his cross motion which was to extend a notice of pendency filed againstthe subject property, and (2) from an order of the same court dated November 6, 2006, whichgranted that branch of the motion of the defendants John H. Eason and J.W.L.J. RealtyCorporation which was for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the appeal from the order entered September 28, 2005 is dismissed, withoutcosts or disbursements; and it is further,
Ordered that the order dated November 6, 2006 is modified, on the law, by deleting theprovision thereof granting that branch of the motion of the defendants John H. Eason andJ.W.L.J. Realty Corporation which was for summary judgment dismissing the second cause ofaction to the extent that it was based upon promissory estoppel, and substituting therefor aprovision denying that branch of the motion; as so modified, the order dated November 6, 2006is affirmed, without costs or disbursements.
Initially, the appeal from the order entered September 28, 2005 must be dismissed, as theplaintiff failed to provide an adequate record to enable this Court to render an informed decisionon the merits of that appeal (see Gaffney v Gaffney, 29 AD3d 857 [2006]).[*2]
With respect to the order dated November 6, 2006 theSupreme Court properly granted that branch of the motion of the defendants John H. Eason andJ.W.L.J. Realty Corporation (hereinafter JWLJ) which was for summary judgment dismissing theplaintiff's first cause of action to the extent that it sounded in fraud. The elements of a claim offraud are "misrepresentation of a material fact, falsity, scienter and deception" (Barclay Armsv Barclay Arms Assoc., 74 NY2d 644, 647 [1989]; see Fredriksen v Fredriksen, 30AD3d 370, 372 [2006]). Eason and JWLJ made a prima facie showing that Eason made nomisrepresentation of fact in connection with the parties' alleged agreement, and in response, theplaintiff failed to raise a triable issue of fact. Moreover, contrary to the plaintiff's contention,even if the first cause of action actually sounded in breach of contract, it was properly dismisseddue to the absence of a writing subscribed by Eason (see General Obligations Law§ 5-703 [1]).
Furthermore, the Supreme Court properly granted that branch of the motion which was forsummary judgment dismissing the fourth cause of action, which sought to impose a constructivetrust on the subject property. The elements of a constructive trust are a confidential or fiduciaryrelationship, a promise, a transfer in reliance thereon, and unjust enrichment (see Sharp vKosmalski, 40 NY2d 119, 121 [1976]; O'Brien v Dalessandro, 43 AD3d 1123, 1124[2007]). Eason and JWLJ established their entitlement to judgment as a matter of law bydemonstrating that there was no transfer of the subject property from the plaintiff to JWLJ. Inresponse, the plaintiff failed to raise a triable issue of fact.
The court properly dismissed the third cause of action, seeking an accounting, and the fifthcause of action, seeking the partition and sale of the subject property, since, in response to themoving defendants' prima facie showing that the plaintiff had no valid interest in the subjectproperty, the plaintiff failed to raise a triable issue of fact.
To the extent that the second cause of action sought specific performance of a contractbetween the plaintiff and Eason, it was properly dismissed. The Supreme Court erred, however,in granting that branch of the motion which was for summary judgment dismissing the secondcause of action to the extent that it was based upon promissory estoppel. The elements of a causeof action based upon promissory estoppel are a clear and unambiguous promise, reasonable andforeseeable reliance by the party to whom the promise is made, and an injury sustained inreliance on that promise (see Gurreri v Associates Ins. Co., 248 AD2d 356, 357 [1998]).In opposition to the moving defendants' prima facie showing of their entitlement to judgment as amatter of law, the plaintiff raised a triable issue of fact as to whether Eason promised him that,after redeeming a tax lien on the subject property, Eason would form a corporation in which bothhe and the plaintiff would have ownership interests and then transfer title to the property to thecorporation, knowing that the plaintiff, in reliance on his representation, would forgoopportunities to redeem the property on his own and perhaps gain sole ownership of it himself. Inaddition, the plaintiff raised triable issues of fact as to whether he actually relied upon Eason'salleged promise and sustained an injury as a result thereof. Moreover, in response to the movingdefendants' prima facie showing that the promissory estoppel claim was barred by the statute oflimitations, the plaintiff raised a triable issue of fact.
The parties' remaining contentions are without merit. Prudenti, P.J., Miller, Dillon andMcCarthy, JJ., concur.