Opinion
32020/2008.
Decided March 29, 2010.
Law Office of Bathsheba Epstein-Hersko, by Natan Shmueli, Esq., Brooklyn, New York, Attorney for Plaintiff.
The Law Office of Sheldon Eisenberger, by Jeremy Rosenberg, New York, New York, Attorney for the Burger defendants.
By notice of motion filed on April 28, 2009, under motion sequence number four defendants Stanley, Harriet, and Morris Berger (hereinafter the Berger defendants) move pursuant to CPLR § 3212 for an order granting them summary judgment in their favor dismissing plaintiff Marilyn Berger's complaint as well as summary judgment on their counterclaim. Plaintiff's opposes the motion.
BACKGROUND
On November 25, 2008, plaintiff commenced this instant action by filing a summons, complaint and a notice of pendency with the Kings County Clerk's office. The Berger defendants joined issue by their verified answer dated January 23, 2009. On February 17, 2009, plaintiff filed an amended verified complaint. On March 6, 2009, the Berger defendants filed their verified amended answer.
Plaintiff's amended verified complaint alleges seventy six allegations of fact in support of six causes of action. The first cause of action seeks to compel a determination of plaintiff's claim of interest in real property pursuant to Article 15 of the RPAPL. The real property in question is located at 1049 56th Street, Brooklyn, New York ("the subject property"). The second cause of action seeks the imposition of a constructive trust over plaintiff's interest in the subject property. The third cause of action is premised on a claim that the Berger defendants' defrauded the plaintiff. The fourth cause of action is denominated as constructive fraud. The fifth cause of action is for unjust enrichment. The sixth and final cause of action seeks promissory and equitable estoppel.
The Berger defendants' verified amended answer pleads seven affirmative defenses and one counterclaim. The Berger defendants' counterclaim seeks to compel a determination that defendant Stanley Berger is the sole owner of the subject property pursuant to Article 15 of the RPAPL.
All the parties in this action are related by blood or marriage. Plaintiff is the wife of defendant Morris Berger ("Morris") and the sister-in-law of defendant Stanley Berger ("Stanley"), Morris' brother. Defendant Harriet Berger ("Harriet") is Stanley's wife.
MOTION PAPERS
The Berger defendants' motion papers consist of the affirmations of Stanley, Morris, and Harriet, as well as eleven exhibits labeled A through K. Exhibit A is plaintiff's summons, verified complaint and notice of pendency. Exhibit B is the defendants' verified answer. Exhibit C is plaintiff's verified amended complaint. Exhibit D is the Berger defendants' amended verified answer and counterclaim. Exhibit E is plaintiff's verified reply to the counterclaim. Exhibit F is a deed to the subject property. Exhibit G is a note and mortgage on the subject property. Exhibit H is a copy of mortgage refinance documents. Exhibit I is a copy of the mortgage payoff documents. Exhibit J is described as a copy of a lease agreement between defendant Stanley as landlord and the plaintiff and her husband, Morris as tenants. Exhibit K is a series of section 8 vouchers issued by the New York City Housing Authority (NYCHA) to Stanley and correspondence between NYCHA and Stanley.
Plaintiff's opposition papers consist of her affirmation and five annexed exhibits labeled 1 through 5. Exhibit 1 is an affirmation of plaintiff's brother, Moishe Mishkowitz. Exhibit 2 is a purported transcription of a conversation between Mishkowitz and defendant Stanley. Exhibit 3 is described by plaintiff as a lease agreement in which her name is forged. Exhibit 4 is described as a copy of a closing statement. Exhibit 5 is described as copies of documents sent by an attorney of the mortgagee to the plaintiff and her husband pertaining to the mortgage on the subject premises.
Defendants Stanley and Morris submitted affirmations in reply.
LAW AND APPLICATION
A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact ( Kolivas v. Kirchoff , 14 AD3d 493 [2nd Dept. 2005]. "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 AD2d 547 [2nd Dept. 1995]). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320; Napolitano v. Suffolk County Dept. Of Public Works , 65 AD3d 676 [2nd Dept 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York 49 NY2d 557, 560 [1980]).
The Berger defendants seek summary judgement on their counterclaim that Stanley Berger is sole owner of the subject property and also seek summary judgement dismissing the plaintiff's complaint. In an RPAPL article 15 action, the burden is on the party making the claim to establish by a preponderance of the evidence that the disputed property is within its chain of title ( see generally State v. Moore, 298 AD2d 814 at 815 [3rd Dept. 2002]). The Berger defendants have demonstrated that Stanley is the sole owner of the subject property by producing a recorded deed conveying said interest to him back in 1986. They have therefore met their burden to show prima facie entitlement to summary judgment that Stanley is the sole owner in fee of the subject property.
In opposition the motion, plaintiff does not dispute that Stanley is the record order of the property as demonstrated by a recorded deed. Rather she contends that the recording of the title in his name was part of an agreement which was made between Stanley, herself and her husband. She further contends that Stanley promised to give back her interest in the subject property in the future and failed to do so.
Plaintiff verified her amended complaint. The court may therefore consider her complaint as an affidavit in accordance with CPLR § 105(U). In determining whether the plaintiff has raised a genuine triable issue of fact, the court has considered her amended verified complaint, her affirmation in opposition and the affirmation of her brother, Moishe Mishkowitz. The court did not consider the transcripts of the alleged conversation between Mishkowitz Stanley because they were not certified, that is, they were not signed by the stenographer who prepared the transcript. The transcript was therefore not in admissible form ( Martinez v 123-16 Liberty Ave. Realty Corp. , 47 AD3d 901 , 902 [2nd Dept., 2008]). However, Mishkowitz as a party to the conversation, which he recorded and had transcribed, may offer in evidence within his affirmation the statements Stanley made to him. Those statements are admissible by plaintiff as the admissions of an adverse party ( see Matter of Giles v Schuyler-Chemung-Tioga Bd. of Coop. Educ. Servs., 199 AD2d 613 [3rd Dept., 1993]).
Among the six causes of action contained within plaintiff's amended complaint is one for imposition of a constructive trust. 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 promise; and (4) resulting unjust enrichment ( see, Aboulessan v. Aboulessan, 9 Misc 3d 1124(A), citing Sharp v. Kosmalski, 40 NY2d 119 at 121 and Modica v. Modica ,15 AD3d 635 [2nd Dept. 2005]).
As for the first element, a confidential 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"( Aboulessan v. Aboulessan, 9 Misc 3d 1124(A)). The parties agree that from the time of the purchase of the subject property through the present, plaintiff has been the wife of defendant Morris and sister-in-law of defendant Stanley. There can be no dispute that plaintiff has a confidential relationship with her husband and her brother-in-law Stanley.
As for the second and third elements, plaintiff's amended complaint alleges that express promises were made at the time of the purchase of the subject property that it would be transferred by Stanley at a later date to plaintiff and her husband. Plaintiff also alleges that she relied upon these promises. Moishe Mishkowitz' affirmation has alleged admissions made by Stanley in the conversation that he had with him which he surreptitiously recorded. Those admissions confirm, among other things, Stanley's understanding of an agreement to give back to the plaintiff her interest in the subject property.
As for the fourth element, there is an issue of fact as to whether Stanley made a promise to the plaintiff to return her share of the subject property to her. Assuming he did, logic dictates that he would be unjustly enriched by retaining her interest in the subject property. Therefore, plaintiff's opposition papers raises an issue of fact as to whether she has an interest in the subject property and as to whether said interest should be the subject of a constructive trust. Inasmuch as the Berger defendants' amended answer and motion papers deny these allegations, issues of fact are raised as to their veracity. It is axiomatic that summary judgment is a drastic remedy which should not be granted where triable issues of fact are raised and cannot be resolved on conflicting affidavits ( Brunetti v. Musallum, 11 AD3d 280 [1st Dept., 2004]).
Consequently, defendants' motion for summary judgment to compel a determination that Stanley Berger is the sole owner of the subject property must be denied.
Similarly, the Berger defendants' motion for summary judgement dismissing the plaintiff's complaint must also be denied.
The foregoing constitutes the decision and order of this court.