Brown v Powell
2012 NY Slip Op 30908(U)
April 4, 2012
Supreme Court, Queens County
Docket Number: 24776 /2011
Judge: David Elliot
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Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE
DAVID ELLIOT
Justice
DOUGLAS BROWN, SR., et ano.,
Plaintiffs,
IAS Part 14
Index
No. 24776
-against-
2011
Motion
Date January 31, 2012
CLARENCE POWELL, etc., et ano.,
Defendants.
Motion
Cal. No. 10
Motion
Seq. No. 1
The following papers numbered 1 to 15 read on this motion by plaintiffs for an order: (1)
deeming the deed dated May 17, 2011, transferring property known as 143-38 Ferndale
Avenue, Jamaica, New York, to defendant 143-38 Ferndale Realty, LLC, void and
discharged and cancelled of record; (2) enjoining the further sale and transfer of said real
property; and (3) staying the proceeding in Civil Court Landlord/Tenant Part from evicting
or removing plaintiffs from the subject premises; and on this cross motion by defendants for
an order dismissing the complaint pursuant to CPLR 3211 (a) (1), (2), (3), (7), and (8), and
for an award of sanctions pursuant to 22 NYCRR 130-1.1.
Papers
Numbered
Order to Show Cause- Affidavit-Affirmation-Exhibits(A-J)................
1-4
Emergency Affirmation.........................................................................
5
Opposing Affirmation............................................................................
6-7
Notice of Cross Motion-Affidavit- Affirmation-Exhibits(A-D)............ 8-12
Reply Affirmation-Exhibits(A-H).......................................................... 13-15
Upon the foregoing papers the motion and cross motion are determined as follows:
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Plaintiffs Douglas Brown Sr., and Frank Brown are the brothers of Ernest Brown,
deceased. Plaintiffs allege that, on November 5, 1962, Ernest Brown purchased the real
property known as 143-38 Ferndale Avenue, Jamaica, New York. The deed to the real
property named Ernest Brown as the sole owner.
Plaintiffs allege that Ernest Brown purchased the subject premises for his parents,
Taft (incorrectly referred to in the complaint as Taff) and Rose Brown, and that his parents
paid the mortgage, taxes, and maintenance from 1962 until Taftâs death in November 1975.
It is alleged that, from 1975 to 1978, Rose remained in the property, during which time she
paid the mortgage, taxes and maintenance for the property. Plaintiffs allege that it was
always the intention of Ernest Brown to transfer the real property to his parents Taft and
Rose Brown. Taft and Rose Brown both died intestate.
Ernest Brown died in November 1977, and was survived by his wife Elsie Brown,
(incorrectly referred to in the complaint as Elise) and there were no children of the marriage.
Elsie Brown died intestate on May 7, 2008 (it is noted that the complaint incorrectly alleges
that she died in May 2006). Defendant Clarence Powell, Elsie Brownâs brother, was
appointed the Administrator of his sisterâs Estate on December 30, 2010. Mr. Powell, in
his capacity as Administrator of the Estate of Elsie Brown, sold the subject real property to
defendant 143-38 Ferndale Realty, LLC (Ferndale Realty), on May 17, 2011, pursuant to an
administratorâs deed which was recorded on June 3, 2011.
Douglas Brown alleges that he has resided in the subject real property since 1982, and
that he has paid taxes on the property. In July 2011, Douglas Brown received a ten-day
notice to quit from Ferndale Realty, and a holdover proceeding has been commenced in Civil
Court Landlord Tenant Part by Ferndale Realty against him (under Index No. 71108/2011).
Plaintiffs commenced this action on October 31, 2011, pursuant to Article 15 of the
Real Property and Proceedings Law (RPAPL). Plaintiffs allege causes of action for the
imposition of a constructive trust, adverse possession, fraud, negligence, and unjust
enrichment. The complaintâs wherefore clause demands that: â1. Plaintiffs Douglas Brown
and Frank Brown and their siblings be declared the owners of the property . . . 2. That in the
alternative, the last deed of record dated May 17, 2011 be claimed [sic] null and void; 3.
Plaintiffs be entitled to the immediate possession and one hundred percent fee interest in the
property; 4. In the event that defendant is [sic] not required to relinquish their interest in the
property, the plaintiff [sic] requests a money judgment in the sum of $500,000.00 to
compensate plaintiffs for the lost sale and the loss of the use of the property; 5. Costs,
disbursements, and interests from November 1, 1962 be reimbursed.â
Plaintiffs, in their order to show cause, seek: (1) to have the May 17, 2011 deed
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deemed void, discharged and cancelled of record; (2) an injunction enjoining the further sale
or transfer of the property; and (3) a stay of the Civil Court holdover proceeding and the
enforcement of a warrant of eviction. Defendants cross move for an order dismissing the
complaint, with prejudice, on the grounds of documentary evidence, lack of personal
jurisdiction, statute of limitations and failure to state a cause of action, pursuant to CPLR
3211(a) (1), (2), (3), (7) and (8), and seek the imposition of sanctions pursuant to 22 NYCRR
130-1.1. Defendants also seek to have the within motion treated as one for summary
judgment and assert that the evidence supporting plaintiffsâ claims are barred by CPLR 4519,
the Dead Manâs Statute.
The parties appeared for oral argument on January 31, 2012, at which time the
defendants waived their jurisdictional defense.
That branch of plaintiffsâ motion which seeks an order an order deeming the May 17,
2011, deed to be void, discharged and cancelled, as well as the request for the relief
demanded in the complaintâs wherefore clause, is denied. These requests seek the same and
ultimate relief sought in the complaint and are, therefore, premature, as issue has not been
joined. To the extent that plaintiffs seek a declaration pursuant to Article 15 of the Real
Property Actions and Proceeding Law, declaring the plaintiff to be the owner in fee simple
absolute, it is noted that declaratory judgment is not a provisional remedy and may not be
obtained in a motion prior to the joinder of issue (see CPLR 3001, 3211, 3212; McHugh v
Weissman, 46 AD3d 369 [2007]; Elec. Data Sys. Corp. v Xerox Corp., 273 AD2d 28 [2000];
Durkin v Durkin Fuel Acquisition Corp., 224 AD2d 574 [1996]).
To be entitled to a preliminary injunction, the movant must establish: (1) a likelihood
of success on the merits, (2) irreparable injury absent granting the preliminary injunction, and
(3) a balancing of the equities in the movantâs favor (see W.T. Grant Co. v Srogi, 52 NY2d
496, 517 [1981]; Ruiz v Meloney, 26 AD3d 485, 485-486 [2006]; Ying Fung Moy v Hohi
Umeki, 10 AD3d 604 [2004]; Hightower v Reid, 5 AD3d 440 [2004]). The purpose of a
preliminary injunction is to maintain the status quo and prevent the dissipation of property
that could render a judgment ineffectual (see Ying Fung Moy v Hohi Umeki, supra). The
decision to grant or deny a preliminary injunction rests in the sound discretion of the
Supreme Court (see Doe v Axelrod, 73 NY2d 748, 750 [1988]; Ruiz v Meloney, supra; Ying
Fung Moy v Hohi Umeki, supra). The branch of plaintiffsâ motion which seeks a preliminary
injunction is denied, as plaintiffs have failed to establish the likelihood of success on the
merits and the balancing of the equities in their favor, which is further discussed infra, with
respect to the merits of defendantsâ cross motion.
It is well established that on a motion to dismiss pursuant to CPLR 3211(a) (7), âthe
court must afford the pleadings a liberal construction, accept the allegations of the complaint
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as true and provide plaintiff the benefit of every possible favorable inferenceâ (AG Capital
Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; see Goshen
v Mutual Life Ins. Co. Of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83,
87-88 [1994]). The courtâs âsole criterion is whether the pleading states a cause of action,
and if from its four corners factual allegations are discerned which taken together manifest
any cause of action cognizable at law, a motion for dismissal will failâ (Polonetsky v
Better Homes Depot, Inc., 97 NY2d 46, 54 [2001], quoting Guggenheimer v Ginzburg,
43 NY2d 268, 275 [1977]; see also Sokoloff v Harriman Estates Dev. Corp.,
96 NY2d 409, 414 [2001]; Leon v Martinez, 84 NY2d at 87-88; Tom Winter Assoc., Inc. v
Sawyer, 72 AD3d 803 [2010]; Uzzle v Nunzie Court Homeowners Assn. Inc. 70 AD3d 928
[2010]; Feldman v Finkelstein & Partners, LLP, 76 AD3d 703[2010]). The facts pleaded
are to be presumed to be true and are to be accorded every favorable inference, although bare
legal conclusions as well as factual claims flatly contradicted by the record are not entitled
to any such consideration (see Morone v Morone, 50 NY2d 481 [1980]; Gertler v Goodgold,
107 AD2d 481 [1985], affd 66 NY2d 946 [1985]).
âWhen evidentiary material is considered, the criterion is whether the proponent of
the pleading has a cause of action, not whether he has stated one (Guggenheimer v Ginzburg,
43 NY2d 268, 275, supra). This entails an inquiry into whether or not a material fact claimed
by the pleader is a fact at all and whether a significant dispute exists regarding it (see id.;
accord, Siegel, Practice Commentaries, McKinneyâs Cons Laws of NY, Book 7B,
CPLR C3211:25, at 39)â (Gershon v Goldberg, 30 AD3d 372 [2006]; see Hispanic Aids
Forum v Estate of Bruno, 16 AD3d 294, 295 [2005]; Sesti v N. Bellmore Union Free Sch.
Dist., 304 AD2d 551, 551-552 [2003]; Mohan v Hollander, 303 AD2d 473, 474 [2003];
Doria v Masucci, 230 AD2d 764, 765 [1996], lv. to appeal denied, 89 NY2d 811 [1997];
Rattenni v Cerreta, 285 AD2d 636, 637 [2001]; Kantrowitz & Goldhamer v Geller,
265 AD2d 529 [1999]; Mayer v Sanders, 264 AD2d 827, 828 [1999]; Sotomayor v
Kaufman, Malchman, Kirby & Squire, 252 AD2d 554 [1998]).
âA motion to dismiss pursuant to CPLR 3211(a)(1) may be granted only where âthe
documentary evidence that forms the basis of the defense [is] such that it resolves all factual
issues as a matter of law, and conclusively disposes of the plaintiff's claimsâ â (HSBC Bank
USA, N.A. v Decaudin, 49 AD3d 694, 695 [2008], quoting Saxony Ice Co., Div. of
Springfield Ice Co., Inc. v Ultimate Energy Rest. Corp., 27 AD3d 445, 446 [2006]; see Leon
v Martinez, 84 NY2d at 88; Uzzle v Nunzie Ct. Homeowners Assn., Inc., supra; McMorrow
v Dime Sav. Bank of Williamsburgh, 48 AD3d 646 [2008]; Sullivan v State of New York, 34
AD3d 443, 445 [2006]; Museum Trading Co. v Bantry, 281 AD2d 524, 525 [2001]; Nevin
v Laclede Professional Prods., 273 AD2d 453, 453 [2000]). Affidavits submitted by a
defendant in support of the motion, however, do not constitute documentary evidence
(Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]).
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Plaintiffsâ first cause of action seeks the imposition of a constructive trust. To state
a legally sufficient cause of action for the imposition of a constructive trust, it is well
established that a plaintiff must plead and prove four essential elements: (1) a confidential
or fiduciary relationship; (2) a promise; (3) a transfer in reliance thereon; and (4) unjust
enrichment caused by breach of the promise (Sharp v Kosmalski, 40 NY2d 119; [1976];
Gaentner v Benkovich, 18 AD3d 424, 426-427 [2005]; Satler v Merlis, 252 AD2d 551
[1998]). In particular, âit must be shown that the party seeking to impose the constructive
trust had some interest in the property prior to obtaining the promise that the property would
be conveyedâ (Eickler v Pecora, 12 AD3d 635, 636 [2004], quoting Bontecou v Goldman,
103 AD2d 732, 733 [1984]; see Ladone v Ladone, 121 AD2d 512, 513 [1986]). A
constructive trust may be imposed when âproperty has been acquired in such circumstances
that the holder of the legal title may not in good conscience retain the beneficial interestâ
(Sharp v Kosmalski, 40 NY2d at 121 [1976]). In such cases, equity converts the legal holder
into a trustee (Simonds v Simonds, 45 NY2d 233, 242 [1978]).
Accepting plaintiffsâ factual allegations as true and according them the benefit of
every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1998]), plaintiffs have
failed to show a âlegally cognizable transfer in relianceâ on any promise made by Ernest
Brown during his lifetime, or unjust enrichment by the defendants (Doxey v Glen Cove
Community Dev. Agency, 28 AD3d 511, 512 [2006]; Gaentner v Benkovich, supra at 427;
Satler v Merlis, supra). Where, as here, neither the plaintiffs nor their parents had an actual
prior interest in the subject property during this time, plaintiffs are required to show that an
equitable interest developed through the expenditure of money, labor, and time in the
propertyâ (see Marini v Lombardo, 79 AD3d 932, 934 [2010], leave to appeal denied 17
NY3d 705 [2011]). However, merely showing that funds were transferred or expended by
the plaintiffs or their parents does not necessarily satisfy the requirement of proving a
transfer in reliance on a promise. In this regard, courts have rejected claimantsâ attempts to
establish the âtransferâ element based on their improvements to property inasmuch as the
improvements also benefitted the claimants (see Marini v Lombardo, supra). Proof of
payments being made by the claimants for the mortgage, operating expenses and real estate
taxes have likewise been held insufficient given that such payments could be considered rent
(see Wilson v La Van, 22 NY2d 131[1968]; Marini v Lombardo, supra; Matter of Lefton
[Bedell], 160 AD2d 702 [1990]; Onorato v Lupoli, 135 AD2d 693 [1987]).
In any event, the statute of limitations expired long before plaintiffs commenced the
action to impose a constructive trust. An action to impose a constructive trust is equitable
in nature ( Sharp v Kosmalski, supra), and is governed by the six-year Statute of Limitations.
The cause of action accrues, in circumstances when there has been a breach or repudiation
of the trust agreement (CPLR 213 [1]; Schwerin v Podgily, 99 AD2d 802, 803 [1984]; Walsh
v Walsh, 91 AD2d 1198 [1983]; Augustine v Szwed, 77 AD2d 298, 300 [1980]). Here,
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plaintiffs allege that their interest in the subject property is derived from their status as
intestate distributees of their parentsâ estates. Ernest Brown purchased the subject property
in 1962, and Taft Brown resided in said property until his death in 1975. Taft Brown, during
his lifetime, did not commence an action to impose a constructive trust on the subject
property, and after his death, no representative of his estate commenced an action to impose
a constructive trust. Therefore, as to Taft Brown, the statute of limitations expired no later
than 1981.
Rose Brown resided in the subject property from 1962 until 1978. Plaintiffs do not
allege that Rose Brown made any payments or expenditures in connection with the subject
property after 1978. Defendants have submitted a copy of a letter dated April 18, 1984
addressed to Elsie Brown, from an attorney retained by Rose Brown, ârelative to the estate
of her deceased son, Mr. Ernest Brown.â Counsel stated that Rose Brown had informed him
that: âthe property in question was initially purchased under Ernest Brownâs G.I. Benefits
for his father, Taft Brown, who undertook to make all subsequent mortgage payment on the
aforementioned property. If that information is accurate, then it would appear that Mrs Rose
Watson Brown, is the party who should rightfully inherit this property.â Counsel
acknowledged that Elsie Brown was the wife of the decedent Ernest Brown , and stated that,
in order to transfer the property âwe would be in need of your consent,â and requested that
she execute a quit claim deed.
Elsie Brown took no steps to transfer the property to Rose Brown. Rose Brown died
in 1994. Rose Brown, during her lifetime, did not commence an action to impose a
constructive trust and, after her death, no representative of her estate commenced an action
to impose a constructive trust. Since Rose Brown was aware that the transfer had not taken
place in 1984, the statute of limitations as to any claim she may have had expired no later
than 1992. As it is not alleged that the subject real property was never part of the Estate of
Taft Brown or the Estate of Rose Brown, plaintiffs have not been deprived of any property
as intestate distributees.
The documentary evidence submitted herein establishes that in 2000, plaintiff Douglas
Brown retained counsel with respect to the subject property. Said counsel, in a letter dated
June 22, 2000 and addressed to Elsie Brown, Douglas Brown, Frank Brown, Taft Brown, Jr.,
James Brown, and Evelyn Brown, stated as follows:
âAs you are aware, the property is owned by ELSIE POWELL BROWN, your
sister-in-law. However, I have been advised that title is in her name for
convenience only, and that it is desired that title be transferred from her name
into the names of TAFT BROWN, JR., JAMES BROWN, FRANK BROWN,
EVELYN DANIELS and DOUGLAS BROWN.
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âIn order for this to be done, it will be necessary for all of the parties to sign
documents before a Notary Public so that the new deed can be properly filed.â
Elsie Brown, however, did not transfer title to these in-laws. Therefore, to the extent
that plaintiffs seek to impose a constructive trust in their own right, the statute of limitations
expired no later than 2006.
In view of the foregoing, that branch of defendantsâ cross motion which seeks to
dismiss the first cause of action to impose a constructive trust is granted.
Plaintiffs, in their second cause of action for adverse possession, allege that, since
1982, Douglas Brown has resided âon the property openly and notoriously and paid taxes
on the propertyâ and that â the property was held openly and notoriously by plaintiffs and
their parents for over ten (10) years.â Thus, the 2008 amendments to the adverse possession
statutes contained in RPAPL article 5 (see L 2008, ch 269, § 5) are not applicable here
because the plaintiffsâ property right, as alleged, vested prior to the enactment of those
amendments (see Shilkoff v Longhitano, 90 AD3d 891, 892 [2011]; Hogan v Kelly, 86 AD3d
590, 592 [2011]).
To claim title to real property by adverse possession, in accordance with the law as
applicable here, the party seeking title must demonstrate that the parcel was âusually
cultivated or improvedâ or âprotected by a substantial inclosureâ (RPAPL former 522 [1],
[2]; see BTJ Realty v Caradonna, 65 AD3d 657, 658 [2009]; Walsh v Ellis, 64 AD3d 702
[2009]). In addition, the party claiming title must demonstrate, by clear and convincing
evidence, satisfaction of the following five common-law elements of the claim over the
course of the applicable statutory period: (1) the possession must be hostile and under a claim
of right; (2) it must be actual; (3) it must be open and notorious; (4) it must be exclusive; and
(5) it must be continuous for the statutory period of 10 years (see Shilkoff v Longhitano,
supra; Skyview Motel, LLC v Wald, 82 AD3d 1081 [2011]; see BTJ Realty, Inc. v
Caradonna, supra; Goldschmidt v Ford St., LLC, 58 AD3d 803, 804 [2009]). â âReduced to
its essentials, this means nothing more than that there must be possession in fact of a type that
would give the owner a cause of action in ejectment against the occupier throughout the
prescriptive periodâ â (Hall v Sinclaire, 35 AD3d 660, 662[2006]; quoting Brand v Prince,
35 NY2d 634, 636 [1974]; see also Kelly v Bastianic, __ AD3d __, 2012 NY Slip Op 1798,
2012 NY App. Div. LEXIS 1772 [March 13, 2012]).
Mere license to use the property from a prior owner does not ripen into title by adverse
possession (Joseph v Whitcombe, 279 AD2d 122, 125-126 [2001]), and an â[a]wareness that
others own the property upon entry on the property or within the 10-year statutory period will
defeat any claim of rightâ (Oak Ponds v Willumsen, 295 AD2d 587, 588 [2002]; see also
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Bockowski v Malak, 280 AD2d 572 [2001]).
Plaintiffsâ allegations do not support a claim for adverse possession. With respect to
Taft and Rose Brown, plaintiffs allege that their parents resided in the premises with the
express consent of their brother Ernest Brown, the owner of the subject real property. Taft
and Rose Brown both resided in the premises from 1962 until 1975, when Taft died. Rose
Brown continued to reside in the premises until 1978. Plaintiffs do not allege that after
Ernestâs death, Rose Brownâs continued occupancy of the premises was hostile. Moreover,
as the documentary evidence submitted herein suggests that Rose Brown was aware that
Elsie Brown had an ownership interest in the property following Ernestâs death, her
occupancy in 1978 was not as of right. Plaintiffs, therefore, cannot âtack onâ their parentsâ
occupancy of the premises in order to establish that their occupancy was hostile and
continuous for the statutory period.
The complaint does not allege that the plaintiffs occupied the premises during the
period of 1978 and 1982. As to Frank Brown, the complaint does not allege that he resided
in the property as to any time. As to Douglas Brown, the complaint does not allege that he
occupied the premises as of right and that said occupancy was of right. Furthermore,
Douglas Brown cannot establish a claim of right, as his attorneyâs letter of June 22, 2000
expressly acknowledges that the subject property was owned by Elsie Brown. To the extent
that plaintiffs allege that they occupied the property as of right based upon an alleged
constructive trust, this claim is rejected for the reasons stated above. As plaintiffsâ
allegations are insufficient to state a claim for adverse possession, that branch of defendantsâ
cross motion which seeks to dismiss the second cause of action is granted.
Plaintiffsâ third cause of action for fraud alleges that the Administrator of the Estate
of Elsie Brown sold the subject real property to Ferndale Realty without their authorization,
âwith the knowledge of plaintiffâs [sic] occupancy and claim of right,â and that âsaid transfer
was done with material misrepresentations as to plaintiffâs [sic] interest in the property.â
In order to plead a viable cause of action for fraud, it must be alleged that the defendant made
a misrepresentation of a material existing fact or a material omission of fact, which was false
and known to be false by the defendant when made, for the purpose of inducing reliance,
justifiable reliance on the alleged misrepresentation or omission by the victim of the fraud,
and injury (Lama Holding Company v Smith Barney Inc., 88 NY2d 413, 421 [1996]).
Plaintiffsâ vague allegations are insufficient to state a claim for fraud (CPLR 3016).
Furthermore, plaintiffs acknowledge that the subject property was owned by Elsie Brown.
Elsie Brown died intestate and plaintiffs, her brothers-in-law, are not intestate distributees
of her Estate. To the extent that plaintiffsâ claim to the property is based on either a
constructive trust or adverse possession, these claims are rejected for the reasons stated
above, and do not give rise to a cause of action for fraud. Therefore, that branch of
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defendantsâ cross motion which seeks to dismiss the third cause of action is granted.
Plaintiffsâ fourth cause of action alleges that the Administrator sold the property
without their authorization, âwith the knowledge of the plaintiffâs [sic] occupancy and claim
of right of a legal and equitable interest,â and that the transfer was made negligently without
concern or consideration for the plaintiffsâ claim of right through adverse possession, or by
a constructive trust. In order to plead a cause of action for negligence, a plaintiff must show
that a defendant owed a duty to the plaintiff, that defendant breached the duty, and that
plaintiff was injured as a proximate result of defendantâs breach (see Friedman v Anderson,
23 AD3d 163, 165 [2005]). Plaintiffsâ allegations are insufficient to state a claim for
negligence, as they do not allege that the Administrator owed them a duty. Furthermore, to
the extent that plaintiffsâ claim to the real property is based on either a constructive trust or
adverse possession, these claims are rejected for the reasons stated above. Therefore, that
branch of defendantsâ cross motion which seeks to dismiss the fourth cause of action is
granted.
Plaintiffsâ fifth cause of action against Ferndale Realty (improperly denominated as
a second fourth cause of action) alleges that the sale of the property was âwithout
authorization of the plaintiff [sic] and with knowledge of plaintiffsâ interest in said propertyâ;
that âsaid transfer was done with the intent to defraud plaintiffsâ claim of right through
adverse possession, or the constructive trustâ; that Ferndale Realty was aware of plaintiffsâ
interest; that Ferndale Realty âhas prevented the sale of the property thus causing all of the
plaintiffs [sic] economic harmâ; that the âdeed dated May 17, 2011 is invalid as it was based
on fraud and against plaintiffsâ right of adverse possessionâ; and that Ferndale Realty âhas
been unjustly enriched through said fraud and deception.â Plaintiffs allegations are
insufficient to state a claim against Ferndale Realty for fraud, for the reasons stated above.
To the extent that the fifth cause of action also states a claim for unjust enrichment,
they are required to show that (1) the defendant was enriched, (2) at the expense of the
plaintiff, and (3) that it would be inequitable to permit the defendant to retain that which is
claimed by the plaintiff (Marini v Lombardo, supra at 934 ; Whitman Realty Group v
Galano, 41 AD3d 590 [2007]; Cruz v McAneney, 31 AD3d 54 [2006]; Clifford R. Gray, Inc.
v LeChase Construction Services, LLC, 31 AD3d 983 [2006]). The essence of an unjust
enrichment cause of action is that one party is in possession of money or property that rightly
belongs to another (Clifford R. Gray, Inc. v LeChase Construction Services, LLC, 31 AD3d
at 983). Plaintiffsâ allegations are insufficient to state a claim for unjust enrichment, as they
acknowledge that Elsie owned the property. To the extent that plaintiffsâ claims are based
on the alleged constructive trust or adverse possession, these claims are rejected for the
reasons stated above. That branch of defendantsâ cross motion which seeks to dismiss
plaintiffsâ cause of action against Ferndale Realty, therefore, is granted.
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Notwithstanding the above discussion â which demonstrates that plaintiffsâ causes of
action cannot withstand defendantsâ cross motion to dismiss â the court recognizes that there
is still an issue as to which parties have an interest in the property (and the extent of their
respective interests), though it cannot be determined on the papers submitted to the court.1
As noted above, it has been alleged herein that Ernest, who was survived by his wife Elsie
and his mother Rose, died intestate. As such, when Ernest died in 1977, the rules governing
intestate succession were as follows: âThe property of a decedent not disposed of by will,
after payment of administration and funeral expenses, debts and taxes, shall be distributed
as follows . . . (4) A spouse and one parent, and no issue, twenty-five thousand dollars and
one-half of the residue to the spouse, and the balance thereof to the parent.â Accordingly,
a portion of Ernestâs estate would have passed to Rose. Further, when Rose died intestate
in 1994, based on the laws of intestacy at that time, her estate would have been distributed
to her issue by representation, which includes plaintiffs herein. Plaintiffsâ claim, then â
though not alleged anywhere in the pleadings â essentially challenges the fiduciaries which
were appointed to administer both the estate of Ernest and the estate of Rose, for distributing
property that may not have been owned outright by the respective estates. It would therefore
appear that the appropriate forum to challenge these alleged improper distributions is the
Surrogateâs Court.
Accordingly, plaintiffsâ motion is denied in its entirety and defendantsâ cross motion
to dismiss the complaint is granted in its entirety. Defendantsâ request for sanctions is
denied. However, the stay imposed in the December 9, 2011 order to show cause is hereby
continued until 30 days after the entry date of this order so that plaintiffs, if they be so
advised, may seek the appropriate relief in Surrogateâs Court.
Dated: April 4, 2012
J.S.C.
1. It is further noted that this issue was not raised by the parties in their papers.
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