Kupfer v Kupfer
2012 NY Slip Op 30141(U)
January 13, 2012
Supreme Court, New York County
Docket Number: 100075/2010
Judge: Emily Jane Goodman
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NNED ON 112312012
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
&IIlLY JANE GOODMAN
Index Number : 100075/2010
MOTION 8EQ. NO.
SEQUENCE NUMBER : 003
Upon the fore$olng papem, It Is ordered that this motlon Is
COUNTY CLERK'S OFFICE
2. CHECK AS APPROPRIATE:
3. CHECK IF APPROPRIATE:
U'GRANTED IN PART
[7 SUBMIT ORDER
0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE
Index No. 100075/10
SAMUEL KUPFER, SEWARD PARK HOUSING
JAN 23 M12
Emily Jane Goodman, J.:
In this unseemly tussle over the ownership of a coopera
apartment, defendant Samuel Kupfer (defendant) moves for summary
judgment dismissing the complaint as against him.
Seward Park Housing Corporation (Seward Park) cross-moves f o r
summary judgment on an unpled claim f o r the payment of monies
allegedly owed to it by both plaintiff Mitchell Kupfer and
defendant, in the form of "maintenance and additional
maintenance." Notice of Cross Motion.
Seward Park is a regidential cooperative corporation which
owns a complex of four buildings located in Manhattan.
alleged that in 1992, Seward Park was a Mitchell-Lama housing
corporation, and, at the time, there was a long waiting list f o r
Plaintiff and defendant are brothers. ' In 1992, the parties'
mother owned an apartment unit in the building, numbered unit
801, a four-bedroom apartment. Plaintiff was named as a joint
holder of some of the shares to unit 801 with his mother, with a
right of survivorship, although he never resided there.
In 1992, defendant claims that he became the proprietary
lessee and shareholder in unit 803 in the building, which
purchase was financed by his mother.
According to defendant, he
then sublet unit 803, which was a one-bedroom apartment, to
plaintiff. Defendant, who was married, never resided in unit
Plaintiff was, and is, single, and has continued to reside
in unit 803 since 1992.
Plaintiff, on the other hand, claims that he is the
beneficial owner of unit 803, if not owner in name. He claims
that the apartment was purchased with funds provided for his
benefit by his mother, but was purchased in defendant's name, in
an effort to defeat Seward Park's rules that single persons were
not allowed to lease one-bedroom apartments (which were
restricted to married couples).
representation that the apartment was h i s , plaintiff had no right
to a one-bedroom apartment. Thus, plaintiff claims that the
apartment is being held in a constructive truat for him as
beneficiary, by defendant, as truatee, despite defendant's name
on the shares and proprietary lease.
In this action, plaintiff
aeeks a judicial determination that he is the owner of the
He denies that he is a subleasee.
Plaintiff also admits that he purchased the apartment
through defendant to defeat Seward Park's rule that no tenant
could have an interest in two apartments in the complex at the
Plaintiff's interest in unit 801 would not allow him
to purchase unit 803 in his own name. The parties' mother passed
and unit 803,s ownership has reverted to plaintiff.
Plaintiff claims that he has paid the maintenance for the
unit since 1992, often through his mother, and has made
substantial renovations to the unit referable to his belief that
he was the beneficial owner of the unit.
Defendant, in this motion, claims that plaintiff cannot
prevail in this equitable action because he has \'unclean hands,"
a reference to plaintiff's admitted deceit in circumventing
Seward Park's rules in order tO get a one-bedroom apartment
instead of a studio. Defendant also claims t h a t an action for a
constructive trust is barred by the statute of limitations, and
that plaintiff's action, which is based on an oral contract, is
further barred by the statute of frauds. Lastly, defendant
argues that plaintiff cannot state a claim for a constructive
trust on the f a c t s alleged.
Seward Park claims no intereat in the outcome of the dispute
but insista t h a t it i a owed
between plaintiff and defendan:,
substantial maintenance fees from both plaintiff and defendant,
along with sublet fees, and a financial recovery for the legal
costs it has sustained in appearing in this action.
A constructive trust
may be recognized where there are
allegations of a confidential or fiduciary relationship, a
promise made, a transfer in reliance on the promise, and
resulting unjust enrichment. See Zane v Minion, 63 AD3d 1151 (2d
Dept 2 0 0 9 ) .
A constructive trust is
an equitable remedy (Sierra
v G a r c i a , 1 6 8 AD2d 2 7 7 [lst Dept 19901), and
Corp. v Seyopp Corp., 1 7 ~
can be defeated by
~ 1 2 , 15 (1966)(\\he
who comes into
equity must come with clean hands [internal quotation omitted]).
Reliance upon the doctrine of unclean hands is
applicable only when the conduct relied on is directly
related to the subject matter in litigation and the
party seeking to invoke the doctrine was injured by
such conduct. To charge a party with unclean hands, it
must be shown that said party was guilty of immoral or
unconscionable conduct directly related to the subject
matter [internal quotation marks and citations
omitted] 1 .
Citibank, N . A . v American Banana Co., I n c . , 5 0 AD3d 593, 5 9 4 (1st
Dept 2 0 0 8 ) -
In the present case, plaintiff readily admits his own
wrongdoing in finding a way to circumvent Seward Park's rules, in
that he allowed defendant to put his name on the proprietary
lease and stock knowing that plaintiff could not do so. See e . g .
Festinger v Edrich, 32 AD3d 412 (2d Dept 2’006)
purchased property in name of sister, in order to evade
61 AD3d 817 (2d Dept 2009).
Plaintiff’s hands are not clean.
However, defendant has not shown how he has been damaged by
plaintiff’s actions. Defendant has apparently n o t paid any
maintenance fees or other charges on unit 801 since t h e unit was
purchased in 1992.
Defendant knew, from the beginning, that he
would never live in the unit, and, as a nonresident, had no right
to a purchase a unit in Seward Park at all. As a result,
defendant aBsisted in the deceit on Seward Park; defendant’s
hands are not clean.’
As defendant has n o t been damaged by plaintiff’B blatantly
unconscionable behavior (aa he shares in it), t h e doctrine of
unclean hands does n o t apply.2
Seward Park appears indifferent to whether plaintiff, as a
single man, retains a right in the unit, or that defendant, as a
nonresident, might have the better interest in the unit, although
both situations were against its rules, circa 1992. Seward Park,
which might have argued that it has been damaged by the parties’
actions, expresses its indifference to the dispute.
Had defendant shown that he sustained any damages,
defendants’s own wrongdoing could not have saved plaintiff.
Where both parties are equally offenders against the
positive laws of the country, or the general principles
of public policy, or the laws of decency or morality,
p o t i o r est conditio d e f e n d e n t i s ; not became the
defendant is more favored where both are equally
Regardless, the action for a constructive trust is barred by
the application of the statute of limitations. A cause of action
for a constructive trust is governed by a six-year statute of
limitations. Goco v Ramnani, 6 5 AD3d 664 (2d Dept 2009). The
statute of limitations for the imposition of a constructive trust
’begins to run at the time of t h e wrongful conduct or event
giving rise to a duty of restitution.” Id. at 665; see also
Dybowski v Dybowska, 146 AD2d 604 (2d Dept 1989) *
case, that event was the purchase of the unit.
In the present
See e . g . Satler v
Merlis, 2 5 2 AD2d 551, 552 (2d Dept 1998)(clairn for constructive
trust arose ‘from the time of the purchase” of the unit); see
also P i s c i o t t o v Dries, 306 AD2d
(2d Dept 2003) (claim for
constructive trust arose at time of wrongful acq-uiaition of
property). As the unit was purchased in 1992, the statute has
long passed, and defendant’s motion to dismiss the complaint as
to him is granted.
B. Seward Park’s Cross Motion
’The proponent of a motion f o r summary Judgment must
demonstrate that there are no material isaueg o fact in dispute,
criminal, but because the plaintiff is n o t permitted to
approach the altar of justice with unclean hands
[internal quotation marks omitted].
Flegenheimer v Brogan, 259 App Div 347, 349-350 (ad Dept), affd
NY 268 (1940), citing Nellis v C l a r k , 4 Hill 4 2 4 , 426 (1842).
and that it is entitled to judgment as a matter of law.” DallasStephenson v Waisman, 39 AD3d 303, 306 ( l m t
Dept 2007), citing
Winegrad v N e w York University Medical Center, 64 NY2d 851, 853
Upon proffer of evidence establishing a prima facie case
by the movant, “the party opposing a motion for summary judgment
bears the burden of ‘produc[ingl evidentiary proof in admissible
form sufficient to require a trial of material questions of
People v Grasso, 5 0 AD3d 535, 5 4 5 ( l a t
quoting Zuckerman v C i t y of N e w York, 49 NY2d 5 5 7 ,
If there is any doubt as to the existence of a triable issue of
fact, summary judgment must be denied. Rotuba Extruders v
Ceppos, 46 NY2d 223 (1978); Gross v Amalgamated Housing
Coxporation, 2 9 8 AD2d 224 (1st Dept 2002).
In ita cross motion, Seward P a r k seeks back maintenance
payments it claims both plaintiff and defendant owe to it, along
with sublet fees, and legal costs for defending itnelf in this
In ita answer, Seward Park seeks neither maintenance
fees nor sublet fees. Aff. of Samuel Kupfer, Ex. 3.
While the general rule is that a party may not obtain
summery judgment on an unpleaded cause of action, it is
also true that summary judgment may be awarded on an
unpleaded cause of action if the proof supports such
cause and if the opposing party has not been misled to
Weinstock v H a n d l e r , 254 AD2d 165, 166 (1st Dept 1998). Here,
there is no prejudice to allowing Seward to move on its
previously unpleaded claims.
Seward Park's right to maintenance fees, and the amounts due
from which party if fees are applicable, are questions of fact
which cannot be determined on this motion.
Seward Park has not shown any right to sublet fees (assuming
sublet fees are recoverable under the proprietary lease), as the
situation herein between plaintiff and defendant is not one of
sublessor and sublessee. This court agrees with defendant that
the situation presented by plaintiff's tenancy is more akin to a
license than a sublet. See 445/86 Owners Corp. v Haydon, 3 0 0
AD2d 8 7 (1st Dept 2 0 0 2 ) .
As a result of the foregoing,
plaintiff's tenancy is subject to defendant's w i l l , and is not a
"right that cannot be revoked for a fixed period of time" (id. at
such as a sublet.
Nor can Seward Park recover attorneya' fees and other legal
coats related to the defense of this action.
prevailing party may not recover attorney's feea from the losing
party except where authorized by statute, agreement or court
U.S. Underwriters Insurance C o . v City C l u b Hotel, LLC, 3
NY3d 592, 597 (2004). While the proprietary leaae allows for
attorney's fees in an action brought pursuant to t h e lease, the
current action is not brought pursuant to the lease by the
lessor, defendant; it is brought by the defendant's licensee,
plaintiff, and attorney's fees are therefore not applicable.
Therefore, Seward Park can only colleqt damages in the form of
maintenance fees, should it show its right to them.
Accordingly, it is
ORDERED that the motion brought by defendant SamueV Kupfer
for summary judgment dismissing the complaint as tohim
granted, and the complaint is dismissed in its entirety as
against Samuel Kupfer, with costs and disbursements to said
defendant as taxed by the Clerk of the Court-upon presentation of
an appropriate bill of c o a t s ; and it
ORDERED that the Clerk is directed to enter judgment
accordingly; and it is further
ORDERED that the crosa motion brought by defendant Seward
Park Housing Corporation f o r summary judgment is*denied.
JAN 23 2012
N M I YORK
COUNW CLERK'S OFFICE