Fischer v. Fischer

202 A.D.2d 331, 609 N.Y.S.2d 218

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered September 22, 1993, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint, and denied plaintiff’s cross motion to inter alia, amend the complaint, unanimously affirmed, without costs.

In this family dispute, plaintiff seeks to prevent the sale of a family residence, and to undo the sale of other property, by his mother, claiming that she held it for his deceased father and subsequently for all of the father’s offspring only as constructive trustee. We agree with the IAS Court that plaintiff’s allegations, even including those in his proposed amended complaint, do not make out a cause of action for a constructive trust (Sharp v Kosmalski, 40 NY2d 119; Hazlett v Fusco, 177 AD2d 813). Plaintiff, as an interested party, is not competent to testify as to his father’s statements (CPLR 4519). We have considered plaintiffs remaining contentions and find them to be without merit. Concur — Murphy, P. J., Sullivan, Rosenberger, Asch and Tom, JJ.