Opinion
Index No. 609627/2018 Motion Seq. No. 001
02-27-2019
MOHAMMED AZIZ, INDIVIDUALLY and as PRESIDENT OF DELIGHT CONSTRUCTION CORP., Plaintiffs, v. ANNA LUIS ASHA and SHAMIN AHMED, Defendants.
Unpublished Opinion
DECISION AND ORDER
LEONARD D. STEINMAN, J.
The following submissions, in addition to any memoranda of law, were reviewed in preparing this Decision and Order:
Defendants' Order to Show Cause, Affirmation, Affidavit & Exhibits........................1
Plaintiffs Affidavit, Affirmation & Exhibits.................................................2
Defendants' Reply Affirmation & Exhibits....................................................3
In this action, plaintiff seeks to recover from defendants the sum of $501,495.19, which he alleges was loaned to defendant Anna Luis Asha in April 2015. Plaintiff further alleges that the money was borrowed so that Asha could purchase a house located at 1015 Cedar Swamp Road in Old Brookville, New York. Asha allegedly purchased the house together with her co-defendant, Shamin Ahmed. According to plaintiff, because he fears that the defendants may sell the house and not repay the loan, he commenced this action and filed a Notice of Pendency. Defendants now move to dismiss the action and cancel the Notice. For the reasons set forth below the motion is granted in part and denied in part.
In response to defendants' motion plaintiff amended his complaint. The original complaint contained claims for breach of contract and unjust enrichment. The amended complaint has added claims seeking the imposition of a constructive trust and the recognition of an equitable lien.
Defendants argue that the complaint should be dismissed pursuant to CPLR 3211(a)(4) because there are prior actions pending between the parties. But a review of the complaints in those actions reveal that none dealt with the loan alleged in this action (at least it cannot be said as a matter of law that they do). In determining whether an action should be dismissed based upon another pending action the critical element is that both suits arise out of the same subject matter or series of alleged wrongs. State Farm Fire and Casualty Co. v. Jewsbury, __ A.D.3d __, 2019 WL 693003 (2d Dept 2019). As a result, defendants' motion to dismiss the complaint on this basis is denied.
Defendants have also moved to vacate the Notice of Pendency. A Notice of Pendency may properly be filed only if there exists a valid cause of action seeking judgment affecting title to or possession, use or enjoyment of, real property. CPLR 6501; Coleman v. Coker, 66 A.D.3d 812 (2d Dept. 2009). Because the parties have agreed that defendants' motion may be deemed directed at the amended complaint, the court must examine if a valid cause of action for a constructive trust (Third Cause of Action) or equitable lien (Fourth Cause of Action) is properly stated. Plaintiff cannot support the filing of his Notice of Pendency based on his breach of contract or unjust enrichment claims-thereby explaining his decision to amend his complaint.
To determine if a claim is properly stated the court must accept as true the facts alleged in the complaint and accord them the benefit of every possible favorable inference. Sokoloff v. Harriman Estates Development Corp., 96 N.Y.2d 409, 414 (2001); see People ex rel Cuomo v. Conventry First LLC, 13 N.Y.3d 108 (2009); Polonetsky v. Better Homes Depot, 97 N.Y.2d 46, 54 (2001). A party is not obligated to demonstrate evidentiary facts to support the allegations contained in the complaint (see, Stuart Realty Co. v. Rye Country Store, Inc., 296 A.D.2d 455 (2d Dept. 2002); Paulsen v. Paulsen, 148 A.D.2d 685, 686 (2d Dept. 1989) and "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus...." EEC I, Inc. v. Goldman Sachs &Co.,5 N.Y.3d 11, 19 (2005); International Oil Field Supply Services Corp. v. Fadeyi, 35 A.D.3d 372 (2d Dept. 2006).
To establish a constructive trust the plaintiff must allege and prove (1) a confidential or fiduciary relationship; (2) a promise; (3) a transfer in reliance upon the promise; and (4) unjust enrichment. Sharp v. Kosmalski, 40 N.Y.2d 119, 121 (1976); Mazzei v. Kyriacou, 139 A.D.3d 823 (2d Dept 2016); Rawe v. Kingston, 94 A.D.3d 852 (2d Dept. 2012). A constructive trust may be imposed "where property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest." Sharp v. Kosmalski, at 121; see also Sharper v. Harlem Teams for Self-Help, Inc., 257 A.D.2d 329 (1999).
Here, as in Mazzei, the plaintiff has failed to identify in its amended pleading any promise, express or implied, relating to the subject property, or any transfer in reliance on any promise relating to the property. See also Liselli v. Liselli, 263 A.D.2d 468 (2d Dept. 1999); Meehan v. Meehan, 227 A.D.2d 268, 270 (2d Dept. 1996). Instead, plaintiff merely alleges that he made an unsecured loan to Asha that subsequently was used to purchase the Old Brookville property and that he made the loan to her so she would be able to purchase the property. As a result, no claim for a constructive trust is properly stated.
Furthermore, plaintiff has not stated a claim for the imposition of an equitable lien. As stated by the Court of Appeals, "an equitable lien is dependent upon some agreement express or implied that there shall be a Hen on specific property." Teichman v. Community Hospital of Western Suffolk, 87 N.Y.2d 514, 520(1996); see also Liselli v. Liselli, 263 A.D.2d at 469. Plaintiff has alleged no such agreement. He alleges a non-secured loan.
As a result, the Third (constructive trust) and Fourth (equitable lien) Causes of Action are dismissed. Because the constructive trust and equitable lien claims are dismissed, the Notice of Pendency is vacated. See Coleman v. Coker, 66 A.D.3d at 814; Sehgal v. Sehgal, 220 A.D.2d 201 (1st Dept. 1995). Those claims are the only ones contained in the amended complaint potentially affecting title to the Old Brookville property. See Mazzei v. Kyriacou, 139A.D.3dat825.
The matter is set down for a Preliminary Conference to be held on March 21, 2019 at 9:30 a.m. in the Preliminary Conference part.
Any relief requested not specifically addressed herein is denied.
This constitutes the Decision and Order of the court.