Opinion
2001-00154
October 1, 2002
In an action, inter alia, to impose a constructive trust on real property, the defendant appeals from an order of the Supreme Court, Queens County (Dollard, J.), dated May 30, 2001, which, inter alia, granted the plaintiff's motion for a preliminary injunction enjoining him from transferring or selling the subject real property, and denied that branch of his cross motion which was to dismiss the complaint.
Ahern Ahern, Kings Park, N.Y. (Dennis P. Ahern of counsel), for appellant.
Deutsch Schneider, LLP, Glendale, N.Y. (Doris Barkhordar of counsel), for respondent.
Before: SONDRA MILLER, J.P., STEPHEN G. CRANE, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
ORDERED that the order is modified, by deleting the provision thereof denying that branch of the cross motion which was to dismiss the fifth cause of action, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed, with costs to the plaintiff.
The allegations in the complaint were insufficient to properly allege that there existed an express or implied agreement between the parties that the plaintiff had acquired a lien on the subject real property (see Teichman v. Community Hosp. of W. Suffolk, 87 N.Y.2d 514, 520). Accordingly, the fifth cause of action must be dismissed.
The Supreme Court did, however, properly deny those branches of the defendant's cross motion which were to dismiss the other causes of action. Contrary to the defendant's contention, the plaintiff sufficiently alleged the elements for the imposition of a constructive trust, including the existence of a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment (see Sharp v. Kosmalski, 40 N.Y.2d 119, 121). Moreover, dismissal was not warranted based on the assertion of a statute of frauds defense. The statute of frauds is not a defense to a properly-pleaded cause of action to impose a constructive trust on real property (see Gottlieb v. Gottlieb, 166 A.D.2d 413, 414). Furthermore, the action, which was commenced in October 2000, was not time-barred since the six-year statute of limitations applicable in this case did not start to run until May 2000, when the defendant, in a letter threatening the plaintiff with eviction, first repudiated any alleged agreement to convey to the plaintiff her interest in the subject property (see CPLR 213; Maric Piping v. Maric, 271 A.D.2d 507, 508).
The defendant's remaining contentions are without merit.
S. MILLER, J.P., CRANE, COZIER and RIVERA, JJ., concur.