| Schwartz v Miltz |
| 2010 NY Slip Op 07323 [77 AD3d 723] |
| October 12, 2010 |
| Appellate Division, Second Department |
| Walter Schwartz, Respondent, v Michele Farkas Miltz,Appellant. |
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In an action for the partition and sale of real property, the defendant appeals from a judgment ofthe Supreme Court, Nassau County (Brandveen, J.), entered October 13, 2009, which, upon remittiturfrom this Court for consideration of the issue of equitable relief after a nonjury trial (see Schwartz v Miltz, 60 AD3d 928[2009]), is in favor of the plaintiff awarding him one half of the proceeds of the sale of the subjectproperty.
Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.
In August 2004 the plaintiff commenced this action for the partition and sale of real property. On aprior appeal in this action from a judgment after a nonjury trial which was in favor of the defendantdismissing the complaint, this Court reversed the judgment and remitted the matter to the SupremeCourt, Nassau County, to consider the issue of equitable relief (see Schwartz v Miltz, 60 AD3d 928 [2009]). Upon considering theissue, the Supreme Court determined that the plaintiff was entitled to equitable relief and awarded himone half of the proceeds of the sale of the subject property.
In reviewing a determination made after a nonjury trial, the power of this Court is as broad as thatof the trial court, and this Court may render the judgment it finds warranted by the facts, bearing in mindthat in a close case, the trial judge had the advantage of seeing the witnesses (see NorthernWestchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; O'Brien v Dalessandro, 43 AD3d1123, 1123-1124 [2007]).
We find that the plaintiff was not entitled to relief by application of the doctrine of either equitableestoppel or promissory estoppel. " 'The elements of a cause of action based upon promissory estoppelare a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom thepromise is made, and an injury sustained in reliance on that promise' " (Agress v Clarkstown Cent. School Dist., 69AD3d 769, 771 [2010], quoting Williams v Eason, 49 AD3d 866, 868 [2008]; see Gurreri vAssociates Ins. Co., 248 AD2d 356, 357 [1998]). The evidence presented at trial did not warranta finding that the plaintiff detrimentally relied on the defendant's alleged promise to convey to him aone-half interest in the subject real property. The expenditures which the plaintiff testified [*2]he made to improve and maintain the subject property may besatisfactorily explained by his desire to improve the surroundings in which he and his family lived(see Ripple's of Clearview v Le Havre Assoc., 88 AD2d 120, 122-123 [1982]; Matter ofLefton [Bedell], 160 AD2d 702, 704 [1990]). Moreover, the plaintiff's testimony established thatthe various expenditures which he made for the benefit of the defendant and her children wereattributable to the nature of his ongoing relationship with defendant, and not referable to her allegedpromise to convey to him a one-half interest in the property (see Richardson & Lucas, Inc. v NewYork Athletic Club of City of N.Y., 304 AD2d 462, 463 [2003]). Accordingly, the facts do notwarrant a finding that the plaintiff was entitled to a remedy in equity by application of the doctrine ofpromissory estoppel. Furthermore, the doctrine of equitable estoppel is not applicable in this case; therewas no allegation by the plaintiff that the defendant's conduct amounted to a false representation orconcealment of material fact (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56NY2d 175 [1982]; First Union Natl. Bank vTecklenburg, 2 AD3d 575 [2003]; Kennedy v Leibowitz, 303 AD2d 375 [2003];Matter of Benincasa v Garrubbo, 141 AD2d 636 [1988]).
Moreover, the plaintiff was not entitled to recover one half of the proceeds of the sale of theproperty under a theory that the various expenditures he made for the benefit of the defendant weregifts in contemplation of marriage. The plaintiff testified that he and the defendant were engaged in 2000and married in 2003, and the Supreme Court credited that testimony. Thus, the plaintiff was not entitledto the benefit of Civil Rights Law § 80-b, as that statute only applies to "return the parties to theposition they were in prior to their becoming engaged . . . [where] the marriage failed tomaterialize" (Gaden v Gaden, 29 NY2d 80, 88 [1971]; see Mancuso v Russo, 132AD2d 533, 534 [1987]). Rivera, J.P., Skelos, Chambers and Roman, JJ., concur. [Prior CaseHistory: 2009 NY Slip Op 32431(U).]