Aboulessan v Aboulessan

[*1] Aboulessan v Aboulessan 2005 NY Slip Op 51769(U) Decided on October 27, 2005 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2005
Supreme Court, Kings County

Hassan Aboulessan, Plaintiff, -

against

Mohammad Aboulessan, Defendant MOHAMMAD ABOULESSAN Third Party Plaintiff, -against AHMAD ABOULESSAN, Third Party Defendant



35261/04

Francois A. Rivera, J.

By notice of motion filed January 21, 2005, plaintiff moves pursuant to CPLR §3212 for summary judgment dismissing defendant's counterclaim and granting plaintiff a judgment of partition and other related relief. Defendant opposes the motion.

On October 26, 2004, plaintiff commenced this action for partition of real property located at 147 Union Street in Brooklyn, New York (hereinafter subject property) by filing a summons and verified complaint. On December 23, 2004, defendant filed a verified answer to the complaint with counterclaim and verified third party complaint and cross-claim. On January 27, 2005, defendant filed an amended verified answer with counterclaim and verified third party complaint and cross-claim. Plaintiff served a reply which generally denied the counterclaim and asserted five affirmative defenses, namely, statute of frauds; statute of limitations; failure of consideration; laches, waiver and estoppel; and lack of privity. The third party claim was assigned index number 76326/04. On January 6, 2005, third party defendant Ahmad Aboulessan answered the third party complaint.

Plaintiff, Hassan Aboulessan is the nephew of defendant Mohammand Aboulessan, and the son of Ahmad Aboulessan, the third party defendant. Third party defendant, Ahmad Aboulessan, is the half brother of defendant, Mohammad Aboulessan. Plaintiff's motion contains his affidavit, his attorney's affirmation, the pleadings and two deeds pertaining to the subject property. The earlier of the two deeds was recorded in the office of the Kings County Clerk on April 9, 1984 and sets forth a title transfer of the subject property on March 12, 1984 by Sudhi Widdi and Nayef Hamdan to Mohammad Aboulessan and Ahmad Aboulessan The later deed sets forth a title transfer on June 22, 2004, of Ahmad Aboulessan's undivided one half interest in the subject property to Hassan Aboulessan. [*2]

Plaintiff seeks an accelerated judgment ordering the partition and sale of the subject premise pursuant to RPAPL §901(1) and a dismissal of defendant's counterclaim pursuant to GOL §5-703, among other grounds. Plaintiff's motion papers identifies the subject property and establishes his interest in same. He asserts no desire to hold and use the property with the defendant and claims that the property can not be divided. He further contends that plaintiff's counterclaim relies on an unenforceable agreement that is both time barred and in violation of the Statute of Frauds.

Defendant's counterclaim seeks imposition of a constructive trust on the subject premises. His affidavit in opposition to the instant motion admits his execution of the earlier deed which appeared to convey title to himself and to his half brother, third party defendant Ahmad Aboulessan. He avers that the execution of the deed was not meant to transfer an ownership interest to his half brother but rather to assist him with an immigration proceeding. He claims that at the time of the execution of deed in 1984, he and his half brother had an oral agreement whereby upon defendant's request his half brother would take all steps necessary to transfer sole title back to the defendant. Defendant was incarcerated for twenty months commencing in May of 2001. During that time, Ahmad Aboulessan allegedly took over operation of the subject premise, appropriated defendant's goods and merchandise that were stored in the basement, and rented space to a bicycle shop without accounting for the funds collected. Defendant contends that his half brother's act of executing a deed on June 22, 2004, which purported to transfer his interest to his son, was a repudiation of their oral agreement and a sham.

RPAPL § 901(1) set forth who may maintain a partition action and provides: A person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners.

One who holds an interest in real property as a tenant in common may maintain an action for partition of the property, and for sale if it appears that partition can not be made without great prejudice to the owner (Piccirillo v. Freidman, 244 AD2d 469 [2nd Dept 1997]). Partition is not an absolute right of a tenant in common, but one which necessarily depends on the equities involved (Stressler v. Stressler,193 AD2d 728 [2nd Dept. 1993]) Thus, partition may be precluded by the equities presented in a given case (Ferguson v. McLoughlin, 184 AD2d 294[1st Dept. 1992]). The right to partition is absolute in the absence of countervailing conditions, and therefore, such issues as the interest of the parties and whether partition may be had without great prejudice should first be determined (Bentley v. Dox, 12 AD3d 1187 [4th Dept. 2004]). Partition, although statutory, is equitable in nature and the court may compel the parties to do equity between themselves when adjusting the distribution of the proceeds of the sale (Freigang v. Freigang, 256 AD2d 539 [2nd Dept 1998]).

Plaintiff's affidavit in reply to defendant's counterclaim, denies the existence of an oral agreement made between his uncle and his father in the instant action. It also asserts that any such agreement would be unenforceable pursuant to the statute of frauds and the statute of limitations. Generally, a constructive trust may be imposed if the court finds: (1) a confidential relationship; (2) a promise, express or implied; (3) a transfer made in reliance upon such [*3]promise; and (4) resulting unjust enrichment (Sharp v. Kosmalski, 40 NY2d 119 at 121 [1976]; see also Modica v. Modica, 15 AD3d 635 [2nd Dept. 2005]). A confidential or fiduciary relationship has been described as a "relation arising out of a close and intimate association which creates and inspires trust and confidence between the parties so associated" (106 NY Jur 2d, Trust §157). "[A] fiduciary relationship is one founded upon trust or confidence reposed by one person in the integrity and fidelity of another"(Penato v. George, 52 AD2d 939 at 942 [2nd Dept. 1976]). For purposes of determining liability, the question of whether a relationship is a fiduciary one is a question of fact for the jury (Langford v. Roman Catholic Diocese of Brooklyn, 271 AD2d 494 at 503 [2nd Dept. 2000]).

Here defendant describes a promise made between brothers, a transfer of the subject property in reliance of the promise, and acts by defendant's brother repudiating the promise. Defendant contends that he is the sole owner of the subject premise and that his brother has unjustly enriched himself by taking and transferring a half interest to his son, the plaintiff. Defendant's pleadings support a cause of action for imposition of a constructive trust.

The question presented is whether plaintiff's moving papers establishes entitlement to an accelerated judgment granting a partition of the subject premise and dismissing defendant's counterclaim as a matter of law. On a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The party opposing the motion must then produce proof in admissible form sufficient to necessitate a trial as to material issues of fact (Laecca v. New York University, 7 AD3d 415 [1st Dept. 2004]; see also Rebecchi v. Whitmore, 172 AD2d 600 [2nd Dept. 1991]). Furthermore, to grant a motion for summary judgment, it must clearly appear that no material issue of fact is presented. The burden upon the court when deciding this type of motion is not to resolve issues of fact or credibility, but rather to determine whether indeed any such issue of fact exist (Barr v. County of Albany, 50 NY2d 247 [1980]; see also Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept 2005]).

Defendant's pleadings on the counterclaim sufficiently states a cause of action for imposition of a constructive trust. All the necessary elements are adequately plead. Inasmuch as the defendant's claim asserts sole ownership of the subject premises, it raises an issue of fact with respect to plaintiff's right to a partition.

CPLR 3011 pertains to kinds of pleadings and provides as follows: There shall be a complaint and an answer. An answer may include a counterclaim against a plaintiff and a cross-claim against a defendant. A defendant's pleading against another claimant is an interpleader complaint, or against any other person not already a party is a third-party complaint. There shall be a reply to a counterclaim denominated as such, an answer to an interpleader complaint or third-party complaint, and an answer to a cross-claim that contains a demand for an answer. If no demand is made, the cross-claim shall be deemed denied or avoided. There shall be no other pleading unless the court orders

otherwise.

A main purpose of CPLR §3011 is to state the instances in which a responsive pleading is required (Siegel, New York Practice §229, 4th Ed). It specifically provides, in pertinent part, that a counterclaim requires a reply. Plaintiff's reply asserted five affirmative defenses, namely, [*4]statute of frauds; statute of limitations; failure of consideration; laches, waiver and estoppel; and lack of privity. The reply, however, does not contain any allegations of fact in support of the affirmative defenses. A review of all pleadings, inclusive of plaintiff's summons and complaint, fails to establish plaintiff's entitlement to dismissal of defendant's counterclaim as a matter of law. Rather, the aforementioned affirmative defenses raise triable issues of fact on the viability defendant's counterclaim.

Plaintiff contends that defendant's counterclaim is time barred. Contrary to the contention of the plaintiff, he is not entitled to summary judgment dismissing the counterclaim as time-barred. "The equitable claim for the imposition of a constructive trust is governed by the six-year Statute of Limitations of CPLR § 213 (1)..., which begins to run at the time of the wrongful conduct or event giving rise to a duty of restitution." (Cilibrasi v. Gagliardotto, 297 AD2d 778 [2nd Dept. 2002]; see also, Maric Piping v. Maric, 271 AD2d 507 at 508 [2nd Dept 2000]). In this instant case, the statute of limitations began to run from the date defendant's brother engaged in acts which appeared to repudiate his alleged promise. There can be no dispute that his execution of a deed conveying his interest to his son in June of 2004 was an unequivocal act of repudiation. It can be reasonably argued that in May of 2001, when he took over operation of the subject property and allegedly appropriated defendant's goods and merchandise his wrongful conduct gave rise to a duty of restitution. Nothing in the pleadings, however, supports the conclusion that it was anytime earlier than that. Applying either period, defendant's counterclaim is timely commenced.

Also, contrary to the contention of plaintiff, he is not entitled to summary judgment dismissing the counterclaim based on the statute of frauds. The statute of frauds is not a defense to a properly pleaded cause of action to impose a constructive trust upon real property (Cilibrasi v. Gagliardotto, supra. 297 AD2d at 778. "Lastly, be it noted that it is axiomatic: if there be any real doubt as to the existence of an issue, there can be no doubt summary judgment must be denied" (Forrest v. Jewish Guild for the Blind, 3 NY3d 295 [2004]; see also, Glick & Dolleck v. Tri-Pac Export Corp., 22 NY2d 439 [1968]). Plaintiff's motion for summary judgment granting partition and sale of the subject premises and dismissing defendant's counterclaim is denied.

The foregoing constitues the decision and order of this court.

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J.S.C