Schwartz v. Schwartz

Appellate Division of the Supreme Court of New York

Schwartz v. Schwartz

36 A.D.3d 604, 825 N.Y.S.2d 917

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

DecidedJanuary 9, 2007

StatusPublished

Cited by2 cases

This text of 36 A.D.3d 604 (Schwartz v. Schwartz) 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

Schwartz v. Schwartz, 36 A.D.3d 604, 825 N.Y.S.2d 917 (N.Y. Ct. App. 2007).

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Opinion

In an action to impose a constructive trust on the parties’ marital residence, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J), dated December 2, 2005, as denied those branches of his motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7).

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in denying that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action for a constructive trust. The plaintiffs complaint, read in the light most favorable to her, failed to allege the existence of a promise and a transfer in reliance thereon (see Cerabono v Price, 7 AD3d 479, 480 [2004]; see generally Simonds v Simonds, 45 NY2d 233, 241 [1978]; Cruz v McAneney, 31 AD3d 54, 59 [2006]).

The defendant’s remaining contention is without merit. Mastro, J.E, Florio, Fisher and Dillon, JJ., concur.

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In an action to impose a constructive trust on the parties’ marital residence, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J), dated December 2, 2005, as denied those branches of his motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7).

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in denying that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action for a constructive trust. The plaintiffs complaint, read in the light most favorable to her, failed to allege the existence of a promise and a transfer in reliance thereon (see Cerabono v Price, 7 AD3d 479, 480 [2004]; see generally Simonds v Simonds, 45 NY2d 233, 241 [1978]; Cruz v McAneney, 31 AD3d 54, 59 [2006]).

The defendant’s remaining contention is without merit. Mastro, J.E, Florio, Fisher and Dillon, JJ., concur.

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Bluebook (online)

36 A.D.3d 604, 825 N.Y.S.2d 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-schwartz-nyappdiv-2007.

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