Clarke v. Sommer

129 A.D.2d 605, 513 N.Y.S.2d 1017, 1987 N.Y. App. Div. LEXIS 45292

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1987
• Status: Published

Opinion

In an action, inter alia, for specific performance of a contract to sell real property, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Oppido, J.), dated March 14, 1986, which granted the defendants’ motion to dismiss the complaint, which appeal brings up for review so much of an order of the same court, dated April 24, 1986, as, upon reargument, adhered to the original determination (CPLR 5517 [b]), and (2) an order of the same court, dated July 25, 1986, which granted the defendants’ motion to dismiss the amended complaint.

Ordered that the appeal from the order dated March 14, 1986 is dismissed; that order was superseded by the order granting reargument; and, it is further,

Ordered that the order dated April 24, 1986 is affirmed insofar as reviewed; and, it is further,

Ordered that the order dated July 25, 1986 is affirmed; and, it is further,

Ordered that the defendants are awarded one bill of costs.

We agree that neither the original complaint nor the amended complaint states a cause of action either for specific performance (General Obligations Law § 5-703; Burns v McCormick, 233 NY 230) or for imposition of a constructive trust or equitable lien upon the premises for the plaintiffs’ benefit (see, Sharp v Kosmalski, 40 NY2d 119; Scivoletti v Marsala, 97 AD2d 401, affd 61 NY2d 806; Matter of Wells, 36 AD2d 471, affd 29 NY2d 931). Mollen, P. J., Brown, Weinstein, Eiber and Harwood, JJ., concur.