Opinion
January 27, 1984
Appeal from the Supreme Court, Monroe County, Tillman, J.
Present — Dillon, P.J., Hancock, Jr., Green, O'Donnell and Schnepp, JJ.
Order unanimously reversed, with costs, and motion denied. Memorandum: Plaintiffs, the daughter and sister of the decedent, seek to impose a constructive trust upon moneys from the decedent's estate. The estate passed to the defendants, who were relatives of the decedent. Special Term should not have granted summary judgment to the defendants because there are triable issues of fact concerning decedent's intent and whether defendants promised the decedent that they would transfer the estate to the plaintiffs when it was safe to do so (see Zuckerman v City of New York, 49 N.Y.2d 557, 562). Plaintiffs have produced evidentiary proof in the form of letters from the decedent to the plaintiffs in which the decedent specifically mentioned the promise alleged in plaintiffs' complaint and explained that he did not devise his estate directly to the plaintiffs because he was afraid that the moneys would be confiscated by the Communist regime under which plaintiffs lived at the time the will was drafted (see Trustees of Amherst Coll. v Ritch, 151 N.Y. 282, 324-327; Tebin v Moldock, 19 A.D.2d 275, mod as to extent of remedy only and aff'd. 14 N.Y.2d 807; Matter of Philippson, 92 Misc.2d 84, 87).