Baje Realty Corp. v Cutler

Baje Realty Corp. v Cutler 2012 NY Slip Op 07215 Decided on October 25, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2012
Mazzarelli, J.P., Sweeny, Renwick, Richter, Román, JJ.
8403N 19205/90

[*1]Baje Realty Corp., Plaintiff-Appellant,

v

Alice Cutler, etc., et al., Defendants/Third-Party Plaintiffs-Respondents, Robert C. Bianco, et al., Third-Party Defendants, Walter Sakow, et al., Third-Party Defendants-Appellants.




Gordon, Gordon & Schnapp, P.C., New York (Elliot Schnapp
of counsel), for appellants.
Deutsch, Metz & Deutsch, LLP, New York (Christian V.
Cangiano of counsel), for Alice Cutler, respondent.
Kaplan Landau, LLP, New York (Eugene Neal Kaplan of
counsel), for Jeffrey Baynon, respondent.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered December 20, 2010, which, insofar as appealed from, after a nonjury trial, denied the motion of plaintiff and third-party defendants Walter Sakow and Marion Sakow for leave to amend the complaint, unanimously affirmed, with costs.

The trial court's denial of the motion for leave to amend the 20-year-old complaint to allege for the first time that Walter Sakow was the true beneficial owner of the shares of Baje Realty and that Robert Bianco held them only as his nominee was based upon a fair interpretation of the evidence turning on explicit credibility determinations (see Hardwick v State of New York, 90 AD3d 540 [1st Dept 2011]). Evidence of Bianco's conduct and other evidence inconsistent with his claim of ownership do not compel a different finding (compare Phillips v Katzman, 90 AD3d 436 [1st Dept 2011]).

Even if appellants are correct that the trial court erroneously applied the statute of frauds with respect to the transfer of shares and should have analyzed their claim as seeking the imposition of a constructive trust, appellants failed to prove the promise required for such relief (see Abacus Fed. Sav. Bank v Lim, 75 AD3d 472, 473-474 [1st Dept 2010]).

We have considered appellants' remaining contentions, including that Bianco is estopped [*2]from claiming the shares by failing to claim them as assets in his bankruptcy filing, that Bianco improperly received the shares for unspecified future services, and that the court's evidentiary rulings and conduct deprived appellants of a fair trial, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2012

CLERK