Schwartz v Schwartz

Schwartz v Schwartz 2007 NY Slip Op 00125 [36 AD3d 604] January 9, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 14, 2007

Gloria Schwartz, Respondent,
v
Leonard Schwartz, Appellant.

—[*1] Denis A. Weinstock, Mineola, N.Y., for appellant.

In an action to impose a constructive trust on the parties' marital residence, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated December 2, 2005, as denied those branches of his motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7).

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in denying that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action for a constructive trust. The plaintiff's complaint, read in the light most favorable to her, failed to allege the existence of a promise and a transfer in reliance thereon (see Cerabono v Price, 7 AD3d 479, 480 [2004]; see generally Simonds v Simonds, 45 NY2d 233, 241 [1978]; Cruz v McAneney, 31 AD3d 54, 59 [2006]).

The defendant's remaining contention is without merit. Mastro, J.P., Florio, Fisher and Dillon, JJ., concur.