Opinion
2008-2325/B.
Decided March 24, 2010.
Leslie L. Francis, Esq., pro se, administrator Milton Watson, pro se, respondent on the motion.
The administrator, the decedent's brother and sole distributee, moves to dismiss the petition brought by the decedent's live-in companion seeking to impose a constructive trust on the decedent's residence located in the Bronx. Although the administrator also moved to compel the companion to respond to the movant's notice of discovery and inspection, the motion to dismiss the companion's petition will be considered first because, if this application is granted, the motion to compel discovery will be rendered academic. The parties were advised in writing that pursuant to CPLR 3211 (c), the motion to dismiss would be treated as one for summary judgment and were afforded an additional period of time to serve and file any documents in support of their respective positions. The companion failed to file any papers in opposition.
The decedent died on October 4, 2008. After the administrator commenced a civil court proceeding seeking to evict the companion from the premises, the companion petitioned this court seeking, inter alia, the imposition of a constructive trust for his benefit alleging that: (1) he cohabited with the decedent at the premises for over nine years and they held themselves out as husband and wife; (2) the decedent named him the sole beneficiary of her retirement annuity; (3) the decedent promised to make a will devising her Bronx home and other property to him; (4) the decedent was unable to follow through on her promises because her illness worsened and she died suddenly; (5) relying on these promises, he made the mortgage payments, paid for the repairs and maintained the premises utilizing $10,000 of his own funds; and, (6) the administrator violated his fiduciary duty to carry out the decedent's wishes and transfer the properties and assets to him.
In support of the motion, the administrator alleges that the companion failed to present evidence that would entitle him to the imposition of a constructive trust over the realty. Specifically, the administrator claims that: (1) no mortgage payments were made since April, 2008, when the decedent stopped working due to her terminal illness; (2) foreclosure proceedings are pending in the Supreme Court, Bronx County; (3) the companion was married to someone else during the entire time he allegedly held himself out as the decedent's husband and remains married; (4) the Bronx property is the family homestead, purchased by a grandmother from her wages as a maid, and he and the decedent were both raised there; (5) the companion failed to proffer any documents to prove alleged payments of operating expenses at the Bronx property other than photocopies of several money orders and receipts bearing only his hand printed name; (6) even if the companion did pay some of the expenses for the Bronx property, they were for his own benefit and there is no independent corroboration that the payments were made in conjunction with the decedent's alleged promise to make a will conveying the property to him; (7) during the administrator's visit to the Bronx realty after the decedent's death he observed that it was filthy, had peeling paint, and it was apparent that no furniture or carpeting was replaced since he left the home in 1976; and, (8) the decedent's alleged promise to make a will devising the property to the companion was clearly not a quid pro quo for paying the carrying costs of the property during her last illness, since the value of the property is approximately $400,000, and it is evident that the companion did nothing to maintain it. The administrator further maintains that he had no knowledge of the existence of any alleged promise by the decedent on which the companion relies and contests its validity.
Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph Kantor Co., 31 NY2d 307; Glick Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065). When the movant has made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v City of New York, 49 NY2d 557). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186).
The companion is not entitled to any relief based solely upon any oral promise that the decedent might have made to devise the realty to him in a will because any such claim is barred by the statute of frauds (EPTL 13-2.1 [a] [2]). In order to prevail on his request for a constructive trust, in addition to the alleged promise that the realty would be transferred to him, the companion must also prove that: a confidential relationship existed between him and the decedent, in reliance upon the decedent's promise he transferred property, and the decedent or those who inherit from her would be unjustly enriched if the decedent's promise were not honored (see Sharp v Kosmalski, 40 NY2d 119); Bolla v Bolla, 10 Misc 3d 906). Although the statute of frauds does not bar the imposition of a constructive trust, the petitioner failed to present proof establishing that he is entitled to this equitable relief. Notwithstanding that it appears that there was a confidential relationship between the decedent and her companion, and assuming, arguendo, that the companion's unsupported self-serving statement suffices to create an issue of fact as to whether there was a promise to transfer the realty to him, the companion failed to adduce proof to support his allegations that in reliance upon the promise he made any significant mortgage payments or paid any substantial sum to maintain the property. Specifically, money orders not payable to a third party do not constitute proof of payment of the mortgage and maintenance, particularly where, as here, it is not disputed the mortgage is in arrears and the property is in a state of disrepair. Thus, the companion failed to create any issue of fact with respect to whether he, in fact, transferred any property in reliance upon the decedent's promise. Consequently, the decedent's sole distributee is not unjustly enriched by the property vesting in him pursuant to EPTL 4-1.1.
This decision constitutes the order and decree of court granting the administrator's motion and dismissing the companion's petition seeking to impose a constructive trust upon the realty owned by the decedent located at 3312 Wilson Avenue, Bronx, New York. The administrator's motion seeking an order compelling the companion to respond to discovery demands is denied, as academic.