Onorato v. Lupoli

Dec 21, 1987
Versions:135 A.D.2d 693
522 N.Y.S.2d 593
1987 N.Y. App. Div. LEXIS 52635

— In an action, inter alia, fоr specific performance of an alleged oral agreement to convey a parcel of real property, the plaintiff appeals (1) as limited by his brief, from so much of an order оf the Supreme Court, Nassau County (Burstein, J.), dated June 17, 1986, as granted those branches of the defendants’ motion whiсh were for summary judgment dismissing the plaintiff’s first and second causes of action for specific performance, and denied the plaintiff’s motion for leave to amend his complaint to add a cause оf action for imposition of a constructive trust, and, (2) from an order of the same court dated Novеmber 19, 1986, which granted the defendants’ motion, inter alia, for cancellation of the lis pendens filed by the plaintiff on thе subject property, subject to certain conditions.

Ordered that the order dated June 17, 1986, is affirmed ‍‌​‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌​​​‌​​‌‌‌‌​‌​‌‌​​​​‌​‌‌‍insofаr as appealed from; and it is further,

Ordered that the order dated November 19, 1986, is affirmed; and it is further,

*694Ordered that the defendants are awarded one bill of costs.

New York’s Stаtute of Frauds provides, in pertinent part, that a contract for the sale of real property is void unless memorialized in a writing subscribed by the party to be charged (see, General Obligations Law § 5-701 [a]; § 5-703 [2]). The law further рrovides that part performance of an oral contract for the sale ‍‌​‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌​​​‌​​‌‌‌‌​‌​‌‌​​​​‌​‌‌‍of real property can remove it from the bar of the Statute of Frauds and give rise to a cause of actiоn for specific performance (see, General Obligations Law § 5-703 [4]). However, it is well settled that in order to come within the exception permitting enforcement of an oral agreement based on pаrt performance, "[tjhere must be performance 'unequivocally referable’ to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership * * * 'An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and рurpose is not, in general, admitted to constitute a part performance’ ” (see, Burns v McCormick, 233 NY 230, 232, quoting Woolley v Stewart, 222 NY 347, 351).

In the instant case, thе plaintiff and his wife exchanged residences with his wife’s brother and each lived in the other’s home for almоst two years. Each party paid the mortgage and taxes on the residence lived in, but took tax deduсtions on the other residence. Although the plaintiff allegedly expended some $5,000 to $10,000 on maintenanсe, repairs and improvements on his brother-in-law’s property during the nearly two years he and his family lived thеre, such expenditures are not "unequivocally referable” to and do not prove the existence of an oral agreement to convey that property. Such expenditures may be satisfactorily explained by the plaintiff’s desire to improve the surroundings in which he and his family were to live (see, Liebowitz v Mingus, 100 AD2d 816). Likewise, the fact that the plaintiff made mortgage, taxes and other payments on the property during the periоd in which he resided in his brother-in-law’s house, could be considered ‍‌​‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌​​​‌​​‌‌‌‌​‌​‌‌​​​​‌​‌‌‍as rent for the use of the property, just as the defendant Lupoli’s payment of the mortgage and taxes on the plaintiff’s home could be considered as rent for the use of that property (see, Wilson v La Van, 22 NY2d 131; Christou v Christou, 109 AD2d 1058, affd 65 NY2d 853). Thus, the Supreme Court properly granted those branсhes of the defendants’ motion which were for summary judgment with respect to the first and second causes оf action for specific performance.

Furthermore, the court did not err in denying the plaintiff’s *695motiоn to amend his pleadings to add a cause of action for the imposition of a constructive trust. It is wеll established that in order to impress a constructive trust, the following ‍‌​‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌​​​‌​​‌‌‌‌​‌​‌‌​​​​‌​‌‌‍elements must be established: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, (4) a breach of thе promise, and (5) unjust enrichment (see, Sharp v Kosmalski, 40 NY2d 119; Scivoletti v Marsala, 97 AD2d 401, affd 61 NY2d 806). Thus, while the Statute of Frauds will ordinarily prevent enforcement of an oral agreement to convey an interest in land, a constructive trust will be impressed when an unfulfilled promise to сonvey an interest in land induces another, in the context of a confidential or fiduciary relationshiр, to make a transfer resulting in unjust enrichment (see, McGrath v Hilding, 41 NY2d 625). "A constructive trust will be imposed where property is parted with on faith of an oral or implied promise to reconvey, 'but none may be imposed by one who has no interest in the property prior to obtaining a promise that such interest will be given to him’ ” (see, Scivoletti v Marsala, supra, at 402, quoting from Matter of Wells, 36 AD2d 471, 474, affd 29 NY2d 931). In the instant case, even affording the plaintiff a liberal reading of ‍‌​‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌​​​‌​​‌‌‌‌​‌​‌‌​​​​‌​‌‌‍his proposed pleadings, and drawing all favorable inferences therefrom (see, 291 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Rovello v Orofino Realty Co., 40 NY2d 633), the plaintiff has failed to establish all of the necessary elements for a constructive trust. Clearly the plaintiff has failed to establish that hе had a prior interest in the subject property, nor has he established the existence of an oral promise to convey title to the property.

Lastly, with respect to the court’s order canсeling the plaintiff’s notice of pendency on the property in question, we find that since the plaintiff hаs failed to state a cause of action for specific performance, it was appropriate for the court to cancel the lis pendens filed against the property (see, Riina v Bitterlich, 114 AD2d 1023). Mangano, J. P., Lawrence, Weinstein and Rubin, JJ., concur.