| Northern Trust, N.A. v Delley |
| 2009 NY Slip Op 02061 [60 AD3d 1345] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| Northern Trust, N.A., as Administrator of the Estate of RichardSarkis, Deceased, Appellant-Respondent, v Patricia A. Delley,Respondent-Appellant. |
—[*1] Michael J. Crosby, Honeoye Falls, for defendant-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Monroe County (EvelynFrazee, J.), entered October 3, 2007 in an action pursuant to Civil Rights Law § 80-b. Theorder, insofar as appealed and cross-appealed from, granted in part and denied in part the motionof plaintiff for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying in its entirety that part of the motion for summary judgment on the complaint andvacating the first and second ordering paragraphs and by granting that part of the motion forsummary judgment dismissing the counterclaim and dismissing the counterclaim and asmodified the order is affirmed without costs.
Memorandum: Richard Sarkis commenced this action pursuant to Civil Rights Law §80-b seeking, inter alia, the return of gifts, including a ring and an interest in real property, thathe purportedly gave to defendant in contemplation of a marriage that never occurred. SupremeCourt granted the motion of Sarkis for summary judgment in part by directing defendant toexecute a quitclaim deed conveying her interest in the property to him subject to a constructivetrust in favor of defendant. The proceeds of the sale or rental of the property were to be placed inthe constructive trust pending a final determination of the parties' respective financial interests inthe property. The court otherwise denied the motion for summary judgment on the complaint andfor summary judgment dismissing the counterclaim and also denied defendant's cross motion forsummary judgment dismissing the third, fourth and fifth causes of action. Sarkis died during thependency of this appeal by him and the cross appeal by defendant, and Northern Trust, NA, asadministrator of the estate of Sarkis, was substituted as the plaintiff.
Addressing first the cross appeal, we agree with defendant that the court erred in failing todeny in its entirety that part of the motion for summary judgment on the complaint, and wetherefore modify the order accordingly. Although Sarkis submitted evidence in admissible formestablishing that he purchased the ring and added defendant's name to the deed to the property in[*2]question as a joint tenant in sole consideration of theimpending marriage, he also submitted evidence in admissible form establishing that the ringwas a birthday gift to defendant and that her name was added to the deed because she was sellingher residence and leaving her employment in contemplation of the marriage. Thus, Sarkis raiseda triable issue of fact by his own submissions, and the court erred in directing defendant toexecute a quitclaim deed conveying her interest in the property to him. Indeed, we note that thecourt cited no legal authority for directing defendant to transfer her interest in the property.
With respect to the appeal, however, we agree with plaintiff that the court erred in denyingthat part of the motion for summary judgment dismissing the counterclaim, which sought reliefthat is not authorized by Civil Rights Law § 80-a (see generally Hendrick vTellier, 274 AD2d 944 [2000]). We therefore further modify the order accordingly.Present—Martoche, J.P., Fahey, Green, Pine and Gorski, JJ.