| Plumitallo v Hudson Atl. Land Co., LLC |
| 2010 NY Slip Op 05374 [74 AD3d 1038] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Anselmo Plumitallo, Appellant, v Hudson Atlantic LandCompany, LLC, et al., Respondents, et al., Defendant. |
—[*1] Reisman, Peirez & Reisman, LLP, Garden City, N.Y. (Jerome Reisman and E. ChristopherMurray of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by his brief and a stipulation between the plaintiff and the defendant 251225 LLC datedMarch 2, 2010, from so much of an order of the Supreme Court, Kings County (Martin, J.), datedJanuary 16, 2009, as granted those branches of the motion of the defendants Hudson AtlanticLand Company, LLC, Mitch Perl, also known as Aron Perl, and Long Beach Venture, LLC,which were pursuant to CPLR 3211 (a) (5) and (7) to dismiss the first, fourth, and fifth causes ofaction insofar as asserted against them and to dismiss the third cause of action insofar as assertedagainst Long Beach Venture, LLC.
Ordered that the order is reversed insofar as appealed from, on the law, and those branchesof the motion of the defendants Hudson Atlantic Land Company, LLC, Mitch Perl, also knownas Aron Perl, and Long Beach Venture, LLC, which were pursuant to CPLR 3211 (a) (5) and (7)to dismiss the first, fourth, and fifth causes of action insofar as asserted against them and todismiss the third cause of action insofar as asserted against the defendant Long Beach Venture,LLC, are denied, with one bill of costs payable to the plaintiff by the defendants Hudson AtlanticLand Company, LLC, Mitch Perl, also known as Aron Perl, and Long Beach Venture, LLC.
The Supreme Court erred in granting the motion of the defendants Hudson Atlantic LandCompany, LLC, Mitch Perl, also known as Aron Perl, and Long Beach Venture, LLC(hereinafter collectively the respondents), to dismiss the first cause of action to recover damagesfor breach of an alleged oral joint venture agreement insofar as asserted against them as barredby the statute of frauds (see General Obligations Law § 5-701). The statute offrauds does not render void oral joint venture agreements to deal in real property because theinterest of each partner in a partnership is deemed personalty (see Mattikow v Sudarsky,248 NY 404, 406-407 [1928]; Fairchild v Fairchild, 64 NY 471, 479 [1876]; Walsh vRechler, 151 AD2d 473 [1989]; Johnson v Johnson, 111 AD2d 1005, 1006 [1985];Elias v Serota, 103 AD2d 410, 413 [1984]). The plaintiff is not seeking to acquire aninterest in real property, but rather, is asserting an alleged interest in joint venture assets (seePisciotto v Dries, 306 AD2d 262, 263 [2003]; Johnson v [*2]Johnson, 111 AD2d at 1006; Liffiton v DiBlasi, 170AD2d 994 [1991]).
Moreover, affording the complaint a liberal construction, accepting all facts as alleged in thecomplaint to be true, and according the plaintiff the benefit of every possible inference, as acourt must on a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction (see Leon v Martinez, 84 NY2d 83, 87 [1994]), the third cause of actionsufficiently pleaded unjust enrichment against the defendant Long Beach Venture, LLC (see Cruz v McAneney, 31 AD3d54, 59 [2006]; Citibank, N.A. vWalker, 12 AD3d 480, 481 [2004]). "Where, as here, there is a bona fide dispute as tothe existence of a contract, or where the contract does not cover the dispute in issue, a plaintiffmay proceed upon a theory of quasi-contract as well as breach of contract, and will not berequired to elect his or her remedies" (Hochman v LaRea, 14 AD3d 653, 654-655 [2005]; see AHA Sales, Inc. v Creative BathProds., Inc., 58 AD3d 6 [2008]; Zuccarini v Ziff-Davis Media, 306 AD2d 404,405 [2003]).
The plaintiff's status as an alleged partner in a joint venture gives rise to a fiduciaryrelationship which allows the imposition of a constructive trust (see Parr v Ronkonkoma Realty Venture I,LLC, 65 AD3d 1199, 1201 [2009]; A.G. Homes, LLC v Gerstein, 52 AD3d 546, 548 [2008];Mendelson v Feinman, 143 AD2d 76, 77 [1988]). Generally, a constructive trust may beimposed when property has been acquired under such circumstances that the holder of the legaltitle may not in good conscience retain the beneficial interest therein (see Sharp vKosmalski, 40 NY2d 119, 121 [1976]). Elements of a constructive trust are (1) a fiduciaryrelationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (seeA.G. Homes, LLC v Gerstein, 52 AD3d at 547). Here, the plaintiff alleged a fiduciaryrelationship by virtue of his status as a partner in a joint venture (see Parr v RonkonkomaRealty Venture I, LLC, 65 AD3d at 1201). The plaintiff's allegations of payment of theentire downpayment, his contribution towards the project expenses, and his contribution of timein acquiring and developing the property, sufficiently alleged the "transfer in reliance" and"unjust enrichment" elements of the fourth cause of action for a constructive trust against therespondents (see Pinkava v Yurkiw,64 AD3d 690, 692 [2009]; Salatinov Salatino, 13 AD3d 512, 513 [2004]; Matter of Bayside Controls, 295 AD2d343, 346 [2002]; Gottlieb v Gottlieb, 166 AD2d 413, 414 [1990]).
Finally, the fifth cause of action adequately pleaded breach of fiduciary duty against therespondents (see Kurtzman vBergstol, 40 AD3d 588, 590 [2007]).
In light of the foregoing, we need not reach the plaintiff's remaining contentions. Dillon, J.P.,Balkin, Belen and Lott, JJ., concur.