Opinion
2012-05-8
Fariha BASALEL, respondent, v. YOUNI GEMS CORPORATION, et al., defendants, David Aharoni, et al., appellants.
Miller Law Offices PLLC, Lawrence, N.Y. (Eric D. Cherches of counsel), for appellants. Heller, Horowitz & Feit, P.C., New York, N.Y. (Eli Feit and Stuart A. Blander of counsel), for respondent.
Miller Law Offices PLLC, Lawrence, N.Y. (Eric D. Cherches of counsel), for appellants. Heller, Horowitz & Feit, P.C., New York, N.Y. (Eli Feit and Stuart A. Blander of counsel), for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, ARIEL E. BELEN, and JEFFREY A. COHEN, JJ.
In an action, inter alia, in effect, for a judgment declaring that the plaintiff's rights to ownership of certain real property are superior to the rights of the defendants based on the theory of constructive trust, the defendants David Aharoni and Yossef Aharoni appeal from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Nahman, J.), entered June 23, 2011, as denied those branches of the defendants' motion which were pursuant to CPLR 3211(a)(3), (5), and (7), to dismiss the complaint insofar as asserted against the defendants David Aharoni and Yossef Aharoni, and pursuant to CPLR 3211(a)(1), in effect, for a judgment in favor of those defendants on the merits based on documentary evidence.
ORDERED that the order and judgment is reversed insofar as appealed from, on the law, with costs, that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1), in effect, for a judgment in favor of the defendants David Aharoni and Yossef Aharoni on the merits based on documentary evidence is granted, those branches of the defendants' motion which were pursuant to CPLR 3211(a)(3), (5), and (7) to dismiss the complaint insofar as asserted against those defendants are denied as academic, and it is declared that the plaintiff's alleged rights to ownership of the subject real property are not superior to the rights of the defendants David Aharoni and Yossef Aharoni.
In this action, inter alia, in effect, for a judgment declaring that the plaintiff's rights to ownership of certain real property are superior to the rights of the defendants based on the theory of constructive trust, the defendants moved, inter alia, pursuant to CPLR 3211(a)(1), in effect, for a judgment in their favor on the merits based on documentary evidence. “To succeed on a motion ... pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim” ( Teitler v. Pollack & Sons, 288 A.D.2d 302, 302, 733 N.Y.S.2d 122;see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511).
The documentary evidence submitted by the defendants conclusively established that the defendants David Aharoni and Yossef Aharoni (hereinafter together the Aharonis) were not unjustly enriched by the transfer of the subject property to them, and that the plaintiff has no interest in the subject property. Therefore, the defendants established as a matter of law that the plaintiff had no cause of action to recover based on the theory of constructive trust against the Aharonis, and the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1), in effect, for a judgment in favor of those defendants on the merits based on documentary evidence ( see Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721;East End Labs., Inc. v. Sawaya, 79 A.D.3d 1095, 1096, 914 N.Y.S.2d 250;Pfeiffer v. Jacobowitz, 29 A.D.3d 661, 662, 815 N.Y.S.2d 165).
Since this is, in part, a declaratory judgment action, it must be declared that the plaintiff's alleged rights to ownership of the subject real property are not superior to the rights of the defendants David Aharoni and Yossef Aharoni ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670,appeal dismissed371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163,cert denied371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).