Opinion
15083 Index No. 652439/18 Case No. 2021–00961
01-18-2022
Kimberly RENK, Plaintiff–Appellant–Respondent, v. Richard RENK, Sr., et al., Defendants–Respondents–Appellants.
Michel O. Weisz P.A., Miami, FL (Michel O. Weisz of the bar of the State of Florida, admitted pro hac vice, of counsel), for appellant-respondent. Akerman LLP, New York (Frederick Andrew Braunstein of counsel), for respondents-appellants.
Michel O. Weisz P.A., Miami, FL (Michel O. Weisz of the bar of the State of Florida, admitted pro hac vice, of counsel), for appellant-respondent.
Akerman LLP, New York (Frederick Andrew Braunstein of counsel), for respondents-appellants.
Renwick, J.P., Webber, Oing, Scarpulla, Pitt, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about March 4, 2021, which denied plaintiff's motion for partial summary judgment on her constructive trust claim and denied defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant defendants’ motion as to the cause of action for unjust enrichment, and otherwise affirmed, without costs.
On a prior appeal, this Court held that defendant Richard Renk, Sr.’s codicil, which referred unequivocally to the oral agreement sued upon, raised issues of fact as to whether it served to revive the limitations period for plaintiff's contract claims under General Obligations Law § 17–101 ( Renk v. Renk, 188 A.D.3d 502, 503, 135 N.Y.S.3d 391 [1st Dept. 2020] ). That holding is law of the case ( Carmona v. Mathisson, 92 A.D.3d 492, 492–93, 938 N.Y.S.2d 300 [1st Dept. 2012] ).
Issues of fact as to when Richard Sr. repudiated the trust and took ownership of the claimed interest preclude summary dismissal of the constructive trust claim on statute of limitations grounds (see Matter of Alpert, 234 A.D.2d 150, 651 N.Y.S.2d 451 [1st Dept. 1996] ).
Plaintiff failed to raise an issue of fact in support of her contention that the doctrine of equitable estoppel bars defendants from asserting the statute of limitations defense. She cites Richard Sr.’s alleged reassertion of the same contractual promise but points to no separate act of deception (see Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 789, 944 N.Y.S.2d 732, 967 N.E.2d 1177 [2012] ).
Issues of fact also exist as to whether the alleged contract was supported by consideration (see generally Brembo, S.P.A. v. T.A.W. Performance LLC, 176 A.D.3d 535, 536, 111 N.Y.S.3d 3 [1st Dept. 2019] ). There is evidence that Richard Sr. received a benefit as well as testimony by plaintiff that her work for the company was in exchange for his holding her interest in his name.
Plaintiff addresses unjust enrichment as an element of her constructive trust claim, but makes no argument about the timeliness of her independent unjust enrichment claim. Accordingly, that claim should be dismissed.
Plaintiff failed to establish her entitlement to summary judgment on her constructive trust claim. Issues of fact exist as to whether certain documents upon which she relied were effectuated, a number of the documents are only partially signed, and other documents are consistent with defendants’ version of the facts.