Lieber v. Lieber

2024 NY Slip Op 30334(U)

• Court: New York Supreme Court, New York County
• Decided: January 25, 2024
• Status: Unpublished

Opinion

Lieber v Lieber 2024 NY Slip Op 30334(U) January 25, 2024 Supreme Court, New York County Docket Number: Index No. 655851/2020 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 655851/2020 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 655851/2020 DEBORAH LIEBER, MOTION DATE 05/25/2023 Plaintiff, MOTION SEQ. NO. 002 - V -

HERBERT LIEBER, PHYLLIS LIEBER DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 32, 33, 34, 35, 36, 37, 38, 39,40,41,42,43,44,45,46,47,48,49,50,53,54, 55, 56, 57,58, 59, 60, 61, 63 were read on this motion to/for JUDGMENT-SUMMARY

Background

This action arises out of a dispute over the ownership of a residential property located at

Co-Op Apartment 4-A at 150 West End Avenue, New York, New York 10023. Plaintiff Deborah

Lieber ("plaintiff') commenced this action seeking a declaratory judgment pursuant to CPLR

3001 designating her the sole owner of the Co-Op apartment and the accompanying 359 shares

of the corporation stock. Plaintiff also seeks a money Judgment against Defendants Herbert

Lieber and Phyllis Lieber ("defendants") in the principal amount of $200,000 plus interest, for an

alleged outstanding loan.

On or about May 1, 1987, a stock certificate for 359 shares of stock in 150 West End

Owners Corp. and the accompanying lease was issued to Herbert Lieber, Phyllis Lieber, Fred

Lieber and Deborah Lieber, as joint tenants with the right of survivorship. The purchase price for

the stock and the Proprietary Lease was$ 104,558.75, of which $75,000 was paid via a purchase

money loan. Herbert Lieber and Fred Lieber were brothers. Herbert Lieber is married to Phyllis

Lieber and Fred Lieber was married to Deborah Lieber. Fred Lieber died on May 26, 2020. It is 655851/2020 LIEBER, DEBORAH vs. LIEBER, HERBERT Page 1 of 7 Motion No. 002

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undisputed that in 1999, the Co-Op mortgage was refinanced by Herbert Lieber and Phyllis

Lieber, who borrowed $150,000. The $150,000 loan was paid in full in December 2004. Plaintiff

currently resides in the Co-Op apartment.

Plaintiff alleges that at the time of the property sale in 1987, she and her late husband

were intended to eventually be the sole legal owners. Plaintiff alleges defendants owed plaintiff

and her late husband money, and thus was repaying the loan by paying the mortgage payments.

Plaintiff alleges pursuant to this agreement, she and her late husband were to pay the down

payment and make the Mortgage, loan, tax, insurance, and other apartment expense payments on

their own with the understanding that defendants would remove their names from the ownership

documents eventually. Plaintiff alleges that while some of those payments may have been made

indirectly in the name of the defendants, the money in fact came from plaintiff and her late

husband. Defendants deny any such agreement was made with plaintiff.

In addition, plaintiff alleges that sometime around 2014 to 2015 she loaned the

defendants $200,000. Defendant denies such loan was ever made. Defendants now move for

summary judgment dismissing plaintiffs' claims and further for a partition and sale of the

property pursuant to RP APL §901.

Discussion

I. Ownership of Co-Op Apartment

Defendants contend plaintiffs constructive trust, promissory estoppel and unjust

enrichment claims are barred by the applicable statute of limitations. According to defendants,

even assuming the validity of plaintiffs allegations, by way of plaintiffs own deposit testimony

the statute of limitations on plaintiffs claims began to run in 2004, when the subject apartment's

mortgage was fully paid. Defendant points plaintiffs deposition testimony in which she stated

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that defendants agreed to remove their names from the proprietary lease and tum over sole

ownership to plaintiff and her late husband when the refinanced mortgage was fully paid. As it is

undisputed the mortgage was paid off in 2004, and defendants did not tum over full ownership to

plaintiff at that time, defendants assert this is the date of breach for the purposes of plaintiff's

claims. In opposition, plaintiff claims that that the statute of limitations for its constructive trust

and other equitable claims was tolled and did not start running until 2020. Plaintiff asserts 2020

is the applicable date of breach as this is when plaintiff's daughters went to the defendants with

paperwork necessary to formalize legal transfer and defendants refused to sign.

Under CPLR 213(1), the statute of limitations to commence an action for a constructive

trust is six years. New York Courts have repeatedly held the statute of limitations commences

upon the occurrence of the wrongful act giving rise to the duty of restitution, not from the time

when the facts constituting the fraud are discovered. Kaufman v. Cohen, 307 A.D.2d 113, 127

(1st Dep't 2003).

Here, the Court finds there is an issue of fact as to whether the defendant revoked around

2004 or in 2020. Looking at the facts in the light most favorable to the nonmoving party, while

defendant did not remove his name from the least when the mortgage was paid off, inaction

doesn't inherently indicate refusal or revocation of promise. Plaintiff rather alleges it was not

until 2020 that defendants formally stated their intention not to sign the document. This follows

logically that plaintiffs would not have gone to defendant in 2020 with a notary and a lawyer as

they allege if there was already an express revocation well over ten years prior. Thus, the Court

finds as there is an issue of fact as to when repudiation occurred, there is thus a question as to

when the statute of limitations was triggered.

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However, defendant further argues the Court should dismiss plaintiffs claim for failure

to plead the elements required for a constructive trust. Defendants argue in the present case, the

complaint does not allege that there was any transfer of property, but rather merely alleges that

there was an agreement to have the defendants' names removed from the stock certificate and

Proprietary Lease.

A constructive trust may be imposed when property has been acquired in such

circumstances that the holder of the legal title may not in good conscience retain the beneficial

interest. It requires a showing of a confidential or fiduciary relationship, a promise, a transfer of

property in reliance on that promise and unjust enrichment. Sharper v. Harlem Teams for Self-

Help, Inc., 257 A.D.2d 329 [1999]. Under New York law, imposition of a constructive trust rests

on a demonstration of the existence and extent of four elements: (1) a confidential or fiduciary

relationship, (2) a promise or agreement, express or implied, (3) a transfer in reliance upon said

agreement, and (4) unjust enrichment thereby. Scull v. Scull, 94 A.D.2d 29 [1983]; See also Size

v. Size, 276 A.D.2d 329 [2000], Sharp v Kosmalski, 40 NY2d 119, 121 [1976].

The Court finds plaintiff has failed to establish its prima facie case for Constructive

Trust. Here, it is undisputed that all parties' names are on stock certificate and proprietary lease,

including plaintiff. Thus, the cases plaintiff relies on are factually distinguishable from the

present matter. In Size v. Size, plaintiff and defendant, a father and son, entered into an oral

agreement whereby the father executed a mortgage and took legal title to a condominium

apartment and the son, provided the down payment, and agreed to make the mortgage payments

while he resided within the apartment. Size v. Size, 276 A.D.2d 329 [2000]. Subsequently, the

father attempted to sell the apartment and his son commenced an action seeking a declaratory

judgment that he is the beneficial owner of the apartment and for imposition of a constructive

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trust. Id. Similarly, in Hira v. Bajaj, plaintiff alleged he gave the defendant the funds to purchase

his share of the property in exchange for an agreement to act as an agent in the ownership of the

property. Hira v. Bajaj, 182 A.D.2d 435 [1992].

In contrast, here it is undisputed that defendants made all the mortgage payments on the

property. Despite this, plaintiff has always retained legal ownership in the property as a joint

tenant with rights of survivorship. Constructive trust is an equitable remedy. The Court finds no

basis for plaintiffs contention that the Court should impose a constructive trust granting them

full and sole ownership of the subject Co-Op when defendants made all mortgage payments and

allowed defendant to solely inhabit the property for over forty years without interference. Even

when looking at the facts in the light most favorable to plaintiff, the Court finds plaintiff has

made no factual allegations which demonstrate a transfer in reliance or unjust enrichment.

Furthermore, the Court finds plaintiff has failed to plead a cause of action for unjust

enrichment. It is well established that to state a claim for unjust enrichment, a plaintiff must

allege that: (1) the [defendant] was enriched, (2) at [plaintiffs] expense, and (3) that it is against

equity and good conscience to permit the [defendant] to retain what is sought to be recovered.

Schroeder v Pinterest Inc., 133 A.D.3d 12 [2015] [internal citations omitted]. For the same

reasons articulated above, the Court finds plaintiff has failed to establish a prima facie case for

unjust enrichment.

However, the Court finds plaintiff has sufficiently alleged a cause of action for

promissory estoppel. Under New York Law a claim for promissory estoppel requires, ( 1) a

promise that is sufficiently clear and unambiguous; (2) reasonable reliance on the promise by a

party; and (3) injury caused by the reliance. MatlinPatterson ATA Holdings LLC v Federal

Express Corp., 87 A.D.3d 836 [2011]. Here, plaintiff alleges defendants promised her and her

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late husband that they would renounce their legal ownership in the property and the apartment

would be fully owned by plaintiff. Plaintiff alleges she relied on this promise in joining the

defendants as joint tenants with rights of survivorship and now the defendants are going back on

their word at plaintiffs detriment. This is buttressed by the fact that the plaintiff has resided in

the subject apartment for over 30 years with the defendants not having resided there without

either defendant appearing to express concern about this arrangement. Thus, there remains an

issue of fact as to whether defendants made this promise to plaintiff, and this is a credibility

determination outside the purview of a motion for summary judgment.

As such, with respect to plaintiffs' claims for constructive trust and unjust enrichment

pertaining to the Co-Op apartment, defendant's motion for summary judgment seeking dismissal

is granted. Because the Court finds there is still an issue of fact as to whether plaintiff is entitled

to full ownership of the property based on a theory of promissory estoppel, partition and sale

pursuant to RPAPL §901 is not available at this juncture.

II. Alleged Outstanding Loan

Defendants contend plaintiffs claim for a money judgment against defendants for failure

to repay an outstanding $200,000 loan should be dismissed. The Court finds looking at the light

most favorable to the nonmoving party, plaintiff has sufficiently alleged a claim against

defendants for constructive trust, promissory estoppel and unjust enrichment. Here, plaintiff

alleges she loaned the defendants $200,000 for which the defendant agreed to repay and

subsequently failed to do so. Defendants' denial, without more, is insufficient to dismiss

plaintiffs claims, as this rests on a credibility determination between the parties. Accordingly, it

is hereby

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ORDERED that defendants' motion for summary judgment seeking dismissal of

plaintiffs claims is granted with respect to constructive trust and unjust enrichment; and it is

further

ADJUDGED that the remainder of defendants' motion is denied.

1/25/2024 DATE LYLE E. FRANK, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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