Samantha Enterprises, Inc. v. Elizabeth Street, Inc.

Mar 23, 2004
Versions:5 A.D.3d 280
774 N.Y.S.2d 681
2004 N.Y. App. Div. LEXIS 3236

Order and judgment (one paper), Supreme Court, New York County (Diane Lebedeff, J.), entered October 27, 2003, which, inter aha, granted defendant-respondent’s motion for summary judgment, dismissing plaintiff’s claims for equitable relief and canceling the notice of pendency filed by plaintiff, unanimously affirmed, without costs.

Plaintiff corporation and defendant-respondent are 50% partners in the beneficiary plaintiff, a general partnership. Plaintiff seeks imposition of a constructive trust, declaratory and other equitable relief and reformation of a 2003 deed conveying certain property to defendant-respondent, on the theory that defendant-respondent usurped the general partnership’s opportunity to purchase downtown Manhattan real estate. There is, however, no evidence that the general partnership had a “tangible expectancy” of purchasing the subject realty or that such purchase would have been consistent with its appropriately defined purpose (see Alexander & Alexander of N.Y. v Fritzen, 147 AD2d 241, 247-248 [1989]). Accordingly, there is no basis to conclude that defendant breached a fiduciary duty to the general partnership (cf. Schneidman v Tollman, 190 AD2d 524, 525 [1993]), or that there was an implied promise, an essential element of a demand for imposition of a constructive trust (see Perelman v Traube, 282 AD2d 270 [2001]), or that the deed transferring the property to defendant should be reformed on the ground of constructive fraud (cf. Metropolitan Life Ins. Co. v Oseas, 261 App Div 768, 771-772 [1941], affd 289 NY 731 [1942]). Summary judgment was, therefore, properly granted, and the notice of pendency properly canceled.

We have considered plaintiffs remaining arguments and find them unavailing. Concur—Tom, J.P., Andrias, Ellerin and Gonzalez, JJ.