Ostreicher v. Ostreicher

Appellate Division of the Supreme Court of New York

Ostreicher v. Ostreicher

238 A.D.2d 392, 657 N.Y.S.2d 357, 1997 N.Y. App. Div. LEXIS 3852

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 14, 1997

StatusPublished

Cited by4 cases

This text of 238 A.D.2d 392 (Ostreicher v. Ostreicher) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ostreicher v. Ostreicher, 238 A.D.2d 392, 657 N.Y.S.2d 357, 1997 N.Y. App. Div. LEXIS 3852 (N.Y. Ct. App. 1997).

Pincite

Opinion

—In an action for the imposition of a constructive trust, the defendants appeal from (1) an order of the Supreme Court, Kings County (G. Aronin, J.), dated March 6, 1996, which denied their motion for summary judgment dismissing the complaint, and (2) an order of the same court dated May 14, 1996, which, inter alia, granted that branch of the plaintiffs’ motion which was to stay a proceeding to evict the plaintiffs pending before the Civil Court, Kings County, entitled Ostreicher v Ostreicher (Index No. 98215), pending hearing and determination of the action.

Ordered that the appeal from the order dated May 14, 1996, is dismissed as academic; and it is further,

Ordered that the order dated March 6, 1996, is reversed, on the law, the motion is granted, and the complaint is dismissed; and it is further,

[393]*393Ordered that the defendants are awarded one bill of costs.

The essential elements needed for the imposition of a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see, Simonds v Simonds, 45 NY2d 233; Sharp v Kosmalski, 40 NY2d 119; Weiss v Weiss, 186 AD2d 247). Here, in opposition to the defendants’ motion, the plaintiffs failed to put forth any evidence, beyond unsubstantiated allegations, to support the imposition of a constructive trust (see, Gluck v Fleischman, 233 AD2d 420; Doria v Masucci, 230 AD2d 764; Davidman v Davidman, 175 AD2d 232; Martin v Martin, 169 AD2d 821; Washington v Defense, 149 AD2d 697). Such unsubstantiated allegations are insufficient to defeat a motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the defendants’ motion for summary judgment dismissing the complaint should have been granted.

In light of our above determination, the defendants’ appeal from the order dated May 14, 1996, is academic. Ritter, J. P., Altman, Krausman and Luciano, JJ., concur.

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—In an action for the imposition of a constructive trust, the defendants appeal from (1) an order of the Supreme Court, Kings County (G. Aronin, J.), dated March 6, 1996, which denied their motion for summary judgment dismissing the complaint, and (2) an order of the same court dated May 14, 1996, which, inter alia, granted that branch of the plaintiffs’ motion which was to stay a proceeding to evict the plaintiffs pending before the Civil Court, Kings County, entitled Ostreicher v Ostreicher (Index No. 98215), pending hearing and determination of the action.

Ordered that the appeal from the order dated May 14, 1996, is dismissed as academic; and it is further,

Ordered that the order dated March 6, 1996, is reversed, on the law, the motion is granted, and the complaint is dismissed; and it is further,

[393]*393Ordered that the defendants are awarded one bill of costs.

The essential elements needed for the imposition of a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see, Simonds v Simonds, 45 NY2d 233; Sharp v Kosmalski, 40 NY2d 119; Weiss v Weiss, 186 AD2d 247). Here, in opposition to the defendants’ motion, the plaintiffs failed to put forth any evidence, beyond unsubstantiated allegations, to support the imposition of a constructive trust (see, Gluck v Fleischman, 233 AD2d 420; Doria v Masucci, 230 AD2d 764; Davidman v Davidman, 175 AD2d 232; Martin v Martin, 169 AD2d 821; Washington v Defense, 149 AD2d 697). Such unsubstantiated allegations are insufficient to defeat a motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the defendants’ motion for summary judgment dismissing the complaint should have been granted.

In light of our above determination, the defendants’ appeal from the order dated May 14, 1996, is academic. Ritter, J. P., Altman, Krausman and Luciano, JJ., concur.

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Bluebook (online)

238 A.D.2d 392, 657 N.Y.S.2d 357, 1997 N.Y. App. Div. LEXIS 3852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ostreicher-v-ostreicher-nyappdiv-1997.

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