| Silberstang v Biderman-Gross |
| 2015 NY Slip Op 08822 [134 AD3d 693] |
| December 2, 2015 |
| Appellate Division, Second Department |
[*1]
| Beverly Silberstang, as Coexecutor of Ruth Hansell,Deceased, Appellant, v Francene Biderman- Gross et al.,Defendants/Third-Party Plaintiffs-Respondents, et al., Respondents. Beverly Silberstanget al., Third-Party Defendants-Appellants, et al., Third-Party Defendant. |
Steven Landy & Associates, PLLC, New York, N.Y. (David A. Wolf ofcounsel), for plaintiff-appellant and third-party defendants-appellants.
Weisberg & Weisberg, Great Neck, N.Y. (Sidney A. Weisberg of counsel), fordefendants/third-party plaintiffs-respondents and defendants-respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff,Beverly Silberstang, as coexecutor of the estate of Ruth Hansell, appeals, as limited bythe brief, from so much of an order of the Supreme Court, Nassau County (K. Murphy,J.), entered December 16, 2011, as denied, as premature, that branch of her motion whichwas for summary judgment on the complaint, with leave to renew following thecompletion of discovery, and the third-party defendants Beverly Silberstang and GoldaA. Pearlman also appeal, as limited by the brief, from so much of the same order asdenied, with leave to renew, that branch of their motion which was to dismiss thethird-party complaint insofar as asserted against them for failure to state a cause ofaction.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the motion of the third-party defendants Beverly Silberstang andGolda A. Pearlman which was to dismiss the third-party complaint insofar as assertedagainst them, and substituting therefor a provision granting that branch of the motion; asso modified, the order is affirmed, without costs or disbursements.
The Supreme Court properly denied that branch of the plaintiff's motion which wasfor summary judgment on the complaint as premature, with leave to renew following thecompletion of discovery (see CPLR 3211 [f]; Knapp v Town of Hempstead, 130 AD3d 579 [2015]).
The Supreme Court, however, should have granted that branch of the motion of thethird-party defendants Beverly Silberstang and Golda A. Pearlman which was to dismiss,insofar as asserted against them, the third-party complaint, which sought to impose aconstructive trust, for failure to state a cause of action (see CPLR 3211 [a] [7]; Igneri v Igneri, 125 AD3d813, 814 [2015]). [*2]Generally, a constructive trustmay be appropriate in situations " '[w]hen property has been acquired in suchcircumstances that the holder of the legal title may not in good conscience retain thebeneficial interest' " (Sharp v Kosmalski, 40 NY2d 119, 121 [1976],quoting Beatty v Guggenheim Exploration Co., 225 NY 380, 386 [1919]; seeIgneri v Igneri, 125 AD3d at 814). The elements for the imposition of a constructivetrust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer inreliance on that promise, and (4) unjust enrichment (see Sharp v Kosmalski, 40NY2d at 121; Henning vHenning, 103 AD3d 778, 780 [2013]; Marini v Lombardo, 79 AD3d 932, 933 [2010]). Here,accepting the facts as alleged in the third-party complaint as true, according thethird-party plaintiffs the benefit of every possible favorable inference, and determiningonly whether the facts as alleged fit within any cognizable legal theory (seeGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]), the third-party complaintdoes not allege the existence of a promise or reliance upon any such promise. Leventhal,J.P., Cohen, Duffy and LaSalle, JJ., concur.