Edelman v Hatami

[*1] Edelman v Hatami 2008 NY Slip Op 50562(U) [19 Misc 3d 1105(A)] Decided on March 11, 2008 Sur Ct, Westchester County Scarpino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2008
Sur Ct, Westchester County

Unni Edelman, as Executrix of the Estate of Edward Edelman, Plaintiff,

against

Mimi Hatami, Defendant.



3460/04



Donald Novick, Esq.

Novick & Assocs., Esq.

For Defendant / Movant

202 East Main Street - Suite 208

Huntington, New York 11743

Richard F. Markert, Esq.

Bleakley, Platt & Schmidt, LLP

For Plaintiff / Cross-Movant

One North Lexington Avenue

White Plains, New York 10601-1700

Anthony A. Scarpino, J.

In an action commenced by plaintiff Unni Edelman ("plaintiff"), as executrix of the estate of Edward Edelman ("decedent"), to recover damages for breach of contract, and a counterclaim by defendant Maryam "Mimi" Hatami ("defendant") for specific performance and/or to recover damages for breach of an alleged oral contract with decedent, transferred to this court by the Supreme Court, New York County (Lehner, J.), (1) defendant moves for summary judgment: (i) on the issue of liability with respect to her counterclaim, and (ii) dismissing the complaint; and (2) [*2]plaintiff cross moves for summary judgment dismissing defendant's counterclaim, and for related relief. The motion is denied, and the cross motion is granted in part, for the reasons set forth, infra.

Decedent died on September 30, 2004, at age 77. He was survived by plaintiff, his spouse since 1966, and eight children - five of whom were from his marriage to plaintiff. At the time of his death, decedent was domiciled in Westchester County, at his marital residence with plaintiff. Prior to his death, decedent had suffered from many physical ailments, including emphysema, cataracts (surgery in 1997), and cardiopulmonary and respiratory issues (heart attack in 1984, by-pass surgery in 1999).

From the time of his marriage to plaintiff until October 1996, decedent was the principal owner and manager of a 12-story apartment building with rental units located at 211 East 51st Street in New York County ("the Building"). In October 1996, he sold the Building and transferred title thereto to Uned Associates, LLC ("Uned"), of which he was sole owner until his death. Uned owned the Building until May 2007, when it sold the Building to a third-party purchaser not interested in the instant action.

In late 1995 or early 1996, defendant, now age 44, became a tenant in the Building. At or around that time, she allegedly began an "intimate" relationship with decedent, which lasted the remainder of decedent's life. Initially, defendant resided in the Building until in or about 1998, when she moved into an apartment building located several blocks away from the Building. Then, from January 2001 through March 2002, defendant resided in London, England, since, according to defendant, decedent sent her there on an all-expense-paid "business" trip. Upon her return to the United States, defendant took up residence at apartment No. 6F in the Building, where she resided until decedent's death.

In July 2005, after objections to probate were filed by decedent's children from his marriage prior to his marriage to plaintiff, decedent's will was admitted to probate, and plaintiff received letters testamentary. Defendant was not a party to the probate proceeding, and she received no bequests under the terms of decedent's will. At the time of his death, decedent's probate estate was estimated to be worth $30 million.

In the interim, in February 2005, plaintiff, as preliminary executrix of decedent's estate, commenced the instant action in Supreme Court, New York County to recover damages for breach of contract. More specifically, in her complaint, plaintiff has alleged that: (i) in or about August 2002, decedent arranged for Music Express East, Inc. ("Music Express") to provide limousine service for defendant upon her request while her mother was visiting New York City; (ii) that defendant orally agreed to reimburse decedent for his payment for the cost of such services; (iii) between August 21 and September 30, 2002, defendant used the services of Music Express on 34 occasions; (iv) decedent was billed with invoices for $24,388.23 for those services; and (v) upon demand, defendant has refused to reimburse the estate for those services. Plaintiff seeks damages in the amount of $24,388.23, plus interest, attendant to the complaint.

In her answer, defendant has asserted, as an affirmative defense, that the complaint should be dismissed on the basis that it "fail[ed] to state a cause of action" (Answer & Counterclaim, at 2 [Aff. In Support of Motion: Ex. C]). Additionally, defendant interposed a counterclaim for breach of contract, alleging that, in return for "services" she "rendered" to him, decedent orally agreed to: (i) pay defendant's "living expenses for a three-year period", (ii) pay defendant's "law school tuition", and (iii) transfer to defendant "title to her residence at [apartment [*3]# 6F]" (Answer & Counterclaim - First Counterclaim: ¶ 3, at 3). According to defendant, the "services" she "rendered" to decedent included, but were not limited to: (i) ensuring that decedent was "cared for" and "fed healthy, nutritious meals"; (ii) "monitoring [decedent's] medical and physical condition"; (iii) "acting as [decedent's] personal confidant" concerning "all aspects of his life, including his health, his relationship with his family, his personal plans, and his business dealings"; and (iv) acting as decedent's "business confidant", which included discussing "the nature and quality of the tenants in his buildings, rent collections, his lending business, the hiring of building employees and his relationships with his accountants and business advisors" (Answer & Counterclaim - First Counterclaim: ¶ 7, at 3-4). Defendant further alleges that: (i) she and decedent first reached the foregoing agreement in 1997, and decedent reaffirmed it to her on "numerous occasions" during the course of their relationship, including most recently in July 2004 (Answer & Counterclaim - First Counterclaim: ¶ 5, at 3); (ii) in 1997, decedent began paying all of her living and travel expenses "in exchange for the services rendered to him by her" (Answer & Counterclaim - First Counterclaim: ¶ 6, at 4); and (iii) she fully performed her obligations under the agreement, and decedent died before he could honor his obligations thereunder (Answer & Counterclaim - First Counterclaim: ¶¶ 9-10, at 4).

Defendant seeks $1.85 million in damages, plus interest, attendant to her counterclaim. In doing so, she has, "upon information and belief", estimated her post-tax "living expenses for a three-year period", beginning in October 2004, at $275,000.00 per year, her "law school tuition (3 years)" at $105,000.00; and the "market value" for apartment # 6F at $920,000.00 (Answer & Counterclaim - First Counterclaim: ¶ 4, at 3).By order dated June 24, 2005, the Supreme Court, New York County (Lehner, J.) transferred the pending claim and counterclaim to this court for determination. Following the completion of disclosure, the instant motions were made, as more fully set forth, infra.

MOTION and CROSS MOTION

In her motion, defendant contends that she is entitled to summary judgment on the issue of liability on her counterclaim, contending: (i) as to that component of her counterclaim regarding title to or the "market value" of apartment # 6F, she is entitled to judgment as a matter of law under the "part performance" exception to the applicable Statute of Frauds, and, further, that she is entitled to the imposition of a constructive trust with respect to proceeds emanating from the sale of the Building to the extent of the "market value" of apartment # 6F; and (ii) as to all components of her counterclaim, she is entitled to judgment as a matter of law under the equitable doctrines of "promissory estoppel" and "quasi-contract". Additionally, defendant contends that the complaint should be dismissed for "failure to state of cause of action".

In opposing defendant's motion, plaintiff claims that issues of fact exist which preclude dismissal of the complaint. In support of her cross motion, plaintiff contends that the estate is entitled to summary judgment dismissing the counterclaim, on the grounds that: (i) the alleged oral agreement is void in its entirety because its terms are not sufficiently definite to constitute an enforceable contract; (ii) the component of the alleged oral agreement regarding title to apartment # 6F is unenforceable due to (a) the applicable Statue of Frauds (General Obligations Law § 5-703), (b) impossibility of performance (i.e., decedent did not own the Building), and (c) failure of a condition precedent (i.e., the prospective conversion of the Building to a condominium for the purpose of transferring ownership of apartment # 6F to defendant); (iii) those components of the alleged oral agreement regarding law school tuition and attendant living expenses are unenforceable [*4]due to (a) the applicable Statute of Frauds (General Obligations Law § 5-701[a][1]), and (b) failure of a condition precedent (i.e., defendant's failure to ever gain admission to law school). Additionally, plaintiff contends that defendant's application for the imposition of a constructive trust with respect to the value of apartment # 6F should not be considered, as that issue was raised for the first time in defendant's instant motion, and, in any event, such relief is unwarranted.

Plaintiff also seeks to strike the affidavit of defendant's counsel submitted in support of defendant's motion "to the extent that it purports to state facts not within the personal knowledge" of defendant's counsel.

APPLICABLE LAW AND CONCLUSIONS

Cross Motion -

Striking Counsel's Affidavit

Initially, that component of plaintiff's cross motion to strike the affidavit of defendant's counsel submitted in support of defendant's motion is denied. Pursuant to the prevailing authorities, the court will view the content of the subject affidavit as a mechanism to summarize the deposition testimony and documentary evidence annexed as exhibits thereto (see Ellman v Village of Rhinebeck, 41 AD3d 635, 636 [and cases cited]).

Summary Judgment

Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law (see Andre v Pomeroy, 35 NY2d 361), and the court's burden on a summary judgment motion made pursuant to CPLR 3212 is not to resolve issues of fact, but merely to determine if such issues exist (see Dyckman v Barrett, 187 AD2d 553). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any genuine material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Center, supra, at 853).

Upon this showing, however, the burden shifts to the party opposing the motion to produce admissible evidentiary proof sufficient to establish the existence of genuine material issues of fact which require a trial of the issues (Zuckerman v City of New York, supra, at 562). In this regard, the court must construe the facts in the light most favorable to the non-moving party, so as not to deprive that party of its day in court (see Russell v A. Barton Hepburn Hosp., 154 AD2d 796).

Defendant's Counterclaim - Lack of Definite Terms of Oral Agreement

Before a court will impose a contractual obligation based on an oral contract or agreement, the proponent must establish that a contract was made and that its terms are definite (Muhlstock v Cole, 245 AD2d 55, 58). In this respect, summary judgment is appropriate where the moving party establishes the deficiency of an oral contract's terms and the responding party fails to raise a triable issue of fact rebutting that showing (Ruppert v Long Is. R.R., 281 AD2d 466), particularly where the contract is of the magnitude that a court would ordinarily expect the parties to embody it in a formal writing (see Allied Sheet Metal Works v Kerby Saunders, 206 AD2d 166). However, not all terms of a contract need be fixed with absolute certainty (see Express Indus. & Terminal Corp. v New York State Dept of Transp., 93 NY2d 584, 589), and courts will not apply the doctrine of indefiniteness to "defeat the reasonable expectations of the parties in entering into a [*5]contract" (Cobble Hill Nursing Home, Inc. v Henry and Warren Corp., 74 NY2d 475, 483, cert. denied 498 US 816 [1990]).

The court finds that, viewed in a light most favorable to defendant, the alleged oral agreement between decedent and defendant does not fail for lack of definite terms. On the instant record, defendant has clearly set forth the terms of decedent's alleged promise to her (First Counterclaim: ¶ 3 [Aff. In Support of Motion: Ex. C]), as well as the services she was to perform in furtherance of the alleged agreement (First Counterclaim: ¶ 7). Defendant further alleges that the purported agreement had been reaffirmed on several occasions since initially made in 1997 (First Counterclaim: ¶ 4). Moreover, while the record indicates some discrepancy as to the length of the term of decedent's alleged obligation to pay defendant's living expenses attendant to her law school education, it contains affidavits and transcripts of pre-trial testimony from at least three non-party witnesses which sufficiently support defendant's contentions as to decedent's promise to pay her law school tuition and attendant living expenses in some fashion (Aff. In Support of Motion: Exs. D, E, F, G, I; Notice of Cross-Motion - Market Aff.: Ex. B). Accordingly, the court finds that the foregoing terms, as alleged by defendant, are sufficiently explicit to withstand dismissal for lack of definiteness.

Defendant's Counterclaim - Statute of Frauds Defenses

i. Apartment # 6

It is long settled under New York's Statute of Frauds that an oral agreement to transfer an interest in real property, other than a lease for a term not exceeding one year, is "nugatory and unenforceable", and a party to the agreement may "legally and rightfully refuse to recognize or perform it" (Woolley v Stewart, 222 NY 347, 350-351; see General Obligations Law § 5-703[1]). Nevertheless, courts of equity may compel the specific performance of agreements under the doctrine of "part performance", as codified in General Obligations Law § 5-703(4), in recognition of the fact that it would amount to fraud to allow one party to a real estate transaction to escape performance after permitting the other to perform in reliance on the agreement (see Walter v Hoffman, 267 NY 365; Panetta v Kelly, 17 AD3d 163). In order to do so, the "part performance" must be "unequivocally referable" to the agreement (Burns v McCormick, 233 NY 230, 232; see Woolley v Stewart, supra, at 351), to wit: the conduct must be inconsistent with any other explanation (Richardson & Lucas, Inc. v New York Athletic Club of City of NY, 304 AD2d 462, 463; Jones P. Day Realty Corp. v Lawrence Assocs., 270 AD2d 140). Moreover, since the doctrine is based upon equitable principles, the acts of part performance must have been those of the party insisting on the contract, not those of the party insisting on the Statute of Frauds (see generally Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 237-238 [and authorities cited]).

Applying the foregoing authorities to the instant case, the court determines that the applicable Statute of Frauds (General Obligations Law § 5-703) bars enforcement of that component of defendant's counterclaim for title to and/or the "market value" of apartment # 6. More specifically, the court finds that the defendant's allegations regarding the services she performed for decedent under their alleged oral agreement (First Counterclaim: ¶ 7) are not "unequivocally referable" to the parties' alleged agreement (see Sinclair v Purdy, 213 App Div 439, affd 242 NY 559). Given the undisputed evidence that decedent and defendant enjoyed an "intimate" relationship over the final seven years of decedent's life, the alleged "services rendered" by defendant are, at the [*6]very least, equally consistent with the "intimate" nature of the parties' relationship, standing apart from the alleged oral agreement (see O'Reilly v O'Reilly, 8 Misc 3d 1026(A) [Sup. Ct., Rockland Cty., 2005 (and cases cited at n 5)]; see e.g. Robin v Cook, NYLJ, Oct. 30, 1990, at 22, col. 1 [Sup. Ct., NY Cty., 1990]).

In view of the foregoing conclusion, the court need not address the remaining defenses plaintiff has raised to that component of defendant's counterclaim attendant to apartment # 6F (i.e., impossibility and failure of condition precedent).

ii. Law School and Attendant Living Expenses

General Obligations Law § 5-701(a)(1) bars enforcement of an oral contract which, by its terms, is not to be performed within one year from the making thereof, or the performance of which is not to be completed before the end of a lifetime. Courts narrowly construe this section to exclude from the statute's bar contracts which could theoretically be performed within one year, even if performance is unlikely to be completed within that time (see Weiner v McGraw-Hill, Inc., 57 NY2d 458; North Shore Bottling Co. v Schmidt & Sons, Inc., 22 NY2d 171). Whether a contract falls within the "one-year" provision turns not on whether the contract is actually performed within the year, but rather on whether, by its express terms or by necessary construction, the agreement is one which cannot be performed within a year (see e.g. North Shore Bottling Co. v Schmidt & Sons, Inc., supra, at 175-176). In this respect, "[t]he question is not what the probable, or expected, or actual performance of the contract was; but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year" (D & N Boening v Kirsch Beverages, 63 NY2d 449, 454, quoting Warner v Texas & Pacific Ry., 164 US 418, 434 [emphasis added]). Moreover, as to the "lifetime" provision of General Obligations Law § 5-701(a)(1), it is settled that the "lifetime" in question can be that of either the party seeking enforcement of an alleged oral agreement or the party insisting on the application of the Statute of Frauds to nullify an alleged oral agreement (see Meltzer v Koenigsberg, 302 NY 523).

Based upon the foregoing authorities and its review of the instant record, the court determines that both the "one-year" provision and the "lifetime" provision of the Statute of Frauds, as set forth in General Obligations Law § 5-701(a)(1), bar enforcement of those components of defendant's counterclaim for payment of law school tuition and related living expenses for a three-year period.

Initially, as to the "one-year" provision, by any "reasonable interpretation" and "necessary construction" of the alleged oral agreement, decedent's obligations thereunder could not be completed within one year of the making thereof. More specifically, defendant admittedly contemplated that her law school tuition and any living expenses would cover, at the very least, a three-year period (First Counterclaim: ¶ 3-4). Thus, decedent would not have been able to fully perform his obligations to pay defendant's law school tuition and related living expenses until those expenses were actually incurred by defendant over the proscribed three-year time period - and perhaps beyond that time period.

Defendant contends that the record supports a finding that decedent was going to pay the costs of the subject tuition and related expenses into a fund prior to her entry into and/or completion of law school within one year of the parties' agreement and had, in fact, already begun to investigate the possibility of doing so (Aff. In Support of Motion: Exs. E and G). The court has [*7]evaluated this contention, and finds that, on this record, it is too speculative to reasonably conclude that decedent was "ready, willing and able" to pay defendant's expenses prior to their accrual or on an annual basis, so as to avoid the application of the "one year" provision of the Statute of Frauds herein.

The court notes that the instant case is distinguishable from certain cases where the "one-year" provision of the Statute of Frauds did not serve as a bar to agreements to pay tuition, where that obligation had already been partially undertaken by the party seeking to apply the Statute of Frauds to void the agreement (cf. Nakamura v Fujii, 253 AD2d 387 [1998]; Zimmerman v Zimmerman, 86 AD2d 525 [1982]; compare Estate of Loren, NYLJ, March 13, 1992, at 28, col. 2 [Surr. Ct., Nassau Cty.]; Matter of Galvin, 148 Misc. 546 [1933]).

As to the "lifetime" provision of General Obligations Law § 5-701(a)(1), in support of her motion, defendant contends that she and decedent had agreed that, under the alleged agreement, she "would continue to provide the agreed upon services for [decedent] for the duration of his life" (Reply Affirm: ¶ 8, at 5). The foregoing contention is fully supported by undisputed statements in the affidavit of a friend of decedent, Dr. Jerrold Atlas, who stated that: (i) decedent credited defendant with saving his life by "arranging for his medical care, cooking meals for him and providing him with female companionship on a daily basis"; and (ii) it was "clear" to him that decedent "desired to maintain this relationship forever", causing him to make "this commitment" (i.e., his alleged promise to pay for defendant's law school and related living expenses) to defendant (Aff. In Support of Motion: Ex. D: ¶ 7). Accordingly, since the alleged oral agreement was to remain in effect for the remainder of decedent's natural life, the agreement also is barred by the "lifetime" provision of the Statute of Frauds (General Obligations Law § 5-701[a][1]; see Meltzer v Koenigsberg, 302 NY 523, supra; see e.g. Robin v Cook, NYLJ, Oct. 30, 1990, at 22, col. 1 [Sup. Ct., NY Cty., 1990], supra).

Additionally, the court rejects defendant's contention that she is entitled to summary judgment as to those components of her counterclaim for law school and related living expenses pursuant to a purported "part performance" exception to the Statute of Frauds, based on her "full performance" of her obligations under the alleged agreement (Reply Memorandum of Law, at 11). Initially, there is no statutory provision in General Obligations Law § 5-701 for a part performance exception to the application of the Statute of Frauds thereunder (compare General Obligations Law § 5-703[4]), and the Court of Appeals has not "judicially created" a part performance exception to General Obligations Law § 5-701 (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, supra, at 234, n 1; Steven Pevner, Inc. v Ensler, 309 AD2d 722). In any event, the application of any part performance exception under the instant circumstances would be inappropriate. As previously stated, defendant's conduct in performing the aforementioned "services rendered" is, at the very least, equally consistent with the "intimate" nature of the parties' relationship, standing apart from the alleged oral agreement (see O'Reilly v O'Reilly, 8 Misc 3d 1026(A), supra; Robin v Cook, supra).

In view of the foregoing conclusion, the court need not address the remaining defense plaintiff has raised to those components of defendant's counterclaim for law school and attendant living expenses (i.e., failure of condition precedent).

Defendant's Counterclaim - Promissory Estoppel[*8]

Defendant also contends that her counterclaim is viable under the equitable doctrine of promissory estoppel. Initially, defendant's assertion of the foregoing doctrine, in attempting to avoid the affirmative defense of the Statute of Frauds, is arguably impermissible (see Cohen v Brown, Harris & Stevens, 64 NY2d 728, 730; Lowinger v Lowinger, 287 AD2d 39, 45). Even if the court was to recognize the doctrine in the instant case (see Rose v Spa Realty Assocs., 42 NY2d 338), the record supports a summary rejection of its application herein.

The elements of promissory estoppel are: (i) a clear and unambiguous promise; (ii) a reasonable and foreseeable reliance by the party to whom the promise is made; and (iii) and injury sustained by the party asserting the estoppel by reason of his/her reliance (Ripple's of Clearview, Inc. v Le Harve Assocs., 88 AD2d 120). In sum, promissory estoppel is only available where one party reasonable relies on the promise of another and it would be unconscionable - or amounting to "contractual overreaching, imposition, oppressiveness or unfairness" (Mazzola v CNA Ins. Co., 145 Misc 2d 896, 901, citing Hume v United States, 132 US 406) - to deny enforcement of the alleged agreement (see James v Western New York Computing Systems, Inc., 273 AD2d 853; Swerdloff v Mobil Oil Corp, 74 AD2d 258).

Viewing the instant record in a light most favorable to defendant, the court cannot conclude that it would be "unconscionable"' to deny enforcement of the parties' alleged agreement. More particularly, the record contains undisputed evidence that: (i) beginning in 1997, decedent began paying for all of defendant's living and travel expenses "in exchange for the services" she rendered to him (First Counterclaim: ¶ 6, at 4 [Aff. In Support of Motion: Ex. C]); (ii) such living and travel expenses included an allowance of approximately $5,000 per month, nearly $200,000.00 in credit card charges over a period of several years, and a year-long all-expense-paid trip to England (Notice of Motion - Ex. D, ¶¶ 5 and 6), as well as providing defendant with rent-free use and occupancy of a residence in and out of New York over that period. Additionally, as far as defendant's efforts to attend law school, the record clearly establishes that the only step she has ever completed toward matriculation in a law school has been to take a commercial course-sponsored preparatory examination for the Law School Aptitude Test (Notice of Cross Motion - Market Affirm: Ex. A, at 44-45). Moreover, defendant's own evidence demonstrates that, on several occasions while decedent was still alive, defendant threatened to disclose to plaintiff the "intimate" nature of her relationship with decedent (Notice of Cross Motion - Market Affirm: Ex. B, at 69-73). Furthermore, as previously stated, defendant's conduct in performing the "services rendered" is, at the very least, equally consistent with the "intimate" nature of her relationship with decedent. Accordingly, the court summarily dismisses defendant's assertion of and/or reliance on the doctrine of promissory estoppel.

Defendant's Counterclaim - Quasi-Contract

Defendant further contends that her counterclaim is viable under the equitable theory of quasi-contract. While the theory of quasi-contract generally cannot be used to circumvent the Statute of Frauds (see Elizabeth St., Inc. v Oscar Z. Ianello Assocs., Inc., NYLJ, Apr. 5, 2007, at 18, col. 1 [and cases cited]), in any event, the court finds that the record supports a summary rejection of its application herein.

It is settled that a cause of action under a quasi-contract theory only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation imposed to prevent a party's unjust enrichment (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 [*9]NY2d 382, 388 [and cases cited]). To prevail on a claim of unjust enrichment, a party must show that: (i) the other party was enriched, at that party's expense, and (ii) it is against equity and good conscience to retain what is sought to be recovered (see Citibank, N.A. v Walker, 12 AD3d 480, 481 [and cases cited]).

For the reasons previously stated in its rejection of the application herein of the doctrine of promissory estoppel, the court finds that the undisputed facts in the record mitigate against any claim by defendant that decedent's estate has been "unjustly enriched" by retaining the apartment and any prospective costs for law school and related expenses.

Defendant's Counterclaim - Constructive Trust

Defendant also claims that a constructive trust must be imposed over the proceeds the estate obtained upon the sale of the Building to the extent of the "market value" of apartment # 6F. In response, plaintiff contends that: (i) the court should not address this claim, as it only being raised for the first time as part of defendant's motion; and (ii) in any event, a constructive trust cannot be imposed, as decedent did not own apartment # 6F at the time the alleged agreement was made, and the estate no longer has possession of the Building and/or apartment.

Initially, under the circumstances, plaintiff's contentions that decedent did not own the Building at the time the alleged oral agreement was made, and that the estate merely possess the proceeds from the sale of the Building at this juncture do not prevent this court from considering whether to impose a constructive trust upon the sale proceeds to the extent requested by defendant (see e.g. Spodek v Riskin, 150 AD2d 358; Elizabeth St., Inc. v Oscar Z. Ianello Assocs., Inc., NYLJ, Apr. 5, 2007, at 18, col. 1, supra). Nor does the court's finding herein that the component of defendant's counterclaim attendant to the value of apartment # 6F is barred by the Statute of Frauds necessarily preclude it from imposing a constructive trust on the sale proceeds (see Stephan v Shulman, 130 AD2d 484; Vanasco v Angiolelli, 97 AD2d 462). However, even if the court were to permit defendant to amend her Answer and Counterclaim to plead the imposition of a constructive trust as to the value of apartment # 6F (see CPLR 3025[b], [c]), on the instant record, the court finds that plaintiff has failed to establish the basis for the imposition of a constructive trust herein.

It is settled that a constructive trust may be impressed when an unfulfilled promise to convey an interest in land induces another, in the context of a confidential or fiduciary relationship, to make a transfer resulting in unjust enrichment (Sharp v Kosmalski, 40 NY2d 119, 121). In this regard, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of a legal title may not, in good conscience, retain a beneficial interest (see Sharp v Kosmalski, supra; Lester v Zimmer, 147 AD2d 340, 341, citing Beatty v Guggenheim Exploration Co. 225 NY 380, 386). The remedy requires the existence of four elements: (i) a confidential or fiduciary relationship; (ii) a promise, expressed or implied; (iii) a transfer made in reliance on the promise; and (iv) unjust enrichment (Sharp v Kosmalski, supra; Elizabeth St., Inc. v Oscar Z. Ianello Assocs., Inc., supra [and cases cited]).

In the instant case, defendant's claim must fail because she never made a transfer in reliance on decedent's alleged promise (see Ewerse v Elghanayan, NYLJ, Aug. 3, 1993, at 22, col. 2 [Sup. Ct., NY Cty.]; see also Stephan v Shulman, 130 AD2d 484, 485-486, supra; cf. Lester v Zimmer, supra ["transfer" component of constructive trust found where "funds, time and effort" were contributed by plaintiff in reliance on a promise to share in the result]). [*10]

In any event, for the reasons previously stated in its rejection of the application of the doctrine of promissory estoppel and the theory of quasi-contract herein, the court finds that the record fails to sustain defendant's contention that decedent's estate has been "unjustly enriched" by retaining the proceeds from the sale of the Building.

Accordingly, that component of defendant's motion for summary judgment on the issue of liability with respect to her counterclaim is denied, in all respects, and that component of plaintiff's motion for summary judgment dismissing defendant's counterclaim in its entirety is granted, in all respects.

Plaintiff's Claim

Defendant contends that plaintiff's claim should be dismissed, since the complaint "fails to state a claim upon which relief can be granted". In support of this contention, defendant alleges that plaintiff has produced no tangible evidence - testimonial or otherwise - which would sustain the existence of an agreement between decedent and defendant to sustain the claim. In this respect, she has submitted pre-trial testimony from Ira Fox, decedent's long-time accountant, who testified that: (i) he was unaware of any agreement between decedent and defendant regarding defendant's responsibility for payment of the subject costs; and (ii) on his own volition and with his own funds (for which he was later reimbursed from the estate), he resolved Music Express' claim against decedent's estate for roughly "one-half on the dollar" of the value of the outstanding invoice balance (i.e., approximately $12,000.00) (Aff. In Support of Motion: Ex. J). She has also submitted pre-trial testimony from Bruce Kafenbaum, a business partner and long-time friend of decedent, who testified that while he was alive, decedent never told him that defendant had agreed to pay the subject charges, and that Kafenbaum had only learned about the claim after decedent's death (Aff. In Support of Motion: Ex. H).

As part of her cross motion, plaintiff has produced a copy of an invoice from Music Express, dated December 4, 2002, which shows, inter alia, that between August 21 and September 25, 2002, 34 separate charges on an Account No. 5388 occurred with the description "MIMI, MS", for a total balance due of $24,388.23 - none of which had been paid as of the invoice date (Aff. In Support of Cross Motion - Edelman: Ex. C). The invoice was addressed to an attorney named Don Carmody, of Woodstock, New York, who, according to Kafenbaum, represented decedent in connection with decedent's dealings with Music Express. Plaintiff contends that questions of fact exist which warrant a trial attendant to this claim, even if prospective damages are limited to the amount for which Fox compromised the claim on the estate's behalf.

Dismissal - Failure to State a Cause of Action

Upon any motion to dismiss a claim for failure to state a cause of action, this court's sole inquiry is whether the facts alleged in the complaint fall within any cognizable legal theory, not whether there is any evidentiary support for the allegations in the complaint. In this respect, pleadings should be liberally construed and if, from the four corners of the pleading, factual allegations can be discerned which, taken together, manifest any claim cognizable at law, the pleading should not be dismissed (CPLR 3211[a][7]; see Foley v D'Agostino, 21 AD2d 60). Viewing the aforementioned evidence in a light most favorable to plaintiff and in light of the [*11]foregoing authorities, the court hereby rejects defendant's contention that the complaint should be dismissed for "failure to state a cause of action".

In any event, if the court were to treat defendant's stated ground for dismissal of the complaint as an application for summary judgment (see CPLR 3212[c]), it must deny that application as well. Initially, defendant fails to establish a prima facie case that she

is entitled to judgment as a matter of law dismissing the complaint, inasmuch as she has merely pointed to gaps in plaintiff's proof rather than affirmatively demonstrating the merit of her defense (see Corrigan v Spring Lake Building Corp.. 23 AD3d 604; Nationwide Prop. Cas. v Nestor, 6 AD3d 409). Also, in the court's estimation, the aforementioned evidence raises a triable factual issue as to the viability of plaintiff's claim to recover the subject limousine service charges from defendant - though solely to the extent that decedent's estate has now comprised its claim (i.e., "about $12,000.00" Fox paid Music Express to resolve Music Express's claim against decedent's estate [Notice of Motion: Ex. J, at 31]).

Accordingly, that component of defendant's motion seeking dismissal of plaintiff's complaint is denied, in all respects.

The matter is hereby restored to the court's regular calendar of Wednesday, May 14, 2008, at 9:30 a.m., for an all-purpose conference before a member of the court's law staff, after the matter has been called that day.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated:White Plains, NY

March 11 , 2008

_________________________________

Hon. Anthony A. Scarpino, Jr.

Westchester County Surrogate

TO:DONALD NOVICK, ESQ.

NOVICK & ASSOCIATES, ESQS.

Attorneys for Defendant / Movant

202 East Main Street - Suite 208

Huntington, New York 11743

RICHARD F. MARKERT, ESQ.

BLEAKLEY PLATT & SCHMIDT, LLP

Attorneys for Plaintiff / Cross-Movant

One North Lexington Avenue

White Plains, New York 10601-1700