Stein v. Reisner

Appellate Division of the Supreme Court of New York

Stein v. Reisner

2016 NY Slip Op 8309, 145 A.D.3d 499, 43 N.Y.S.3d 303

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

DecidedDecember 8, 2016

Docket2433 110599/10

StatusPublished

Cited by2 cases

This text of 2016 NY Slip Op 8309 (Stein v. Reisner) 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.

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Stein v. Reisner, 2016 NY Slip Op 8309, 145 A.D.3d 499, 43 N.Y.S.3d 303 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered June 11, 2015, as amended by order, same court and Justice, entered June 16, 2015, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We do not reach the breach of contract claim, since plaintiffs make no argument in support of reinstating it (see Carey & Assoc. LLC v 521 Fifth Ave. Partners, LLC, 130 AD3d 469, 470 [1st Dept 2015]). Were we to address plaintiffs’ argument, raised for the first time in opposition to defendant’s motion (see People v Grasso, 50 AD3d 535, 571 [1st Dept 2008]), that the contested document was not a contract but a written assignment exempt from the requirement of consideration (see General Obligations Law § 5-1107), we would reject it. The documentary evidence demonstrates that defendant intended not to transfer ownership of the property in the present but to “make a testamentary disposition effective only after [his] death, [which] is invalid unless made by will” (Gruen v Gruen, 68 NY2d 48, 53 [1986]).

The promissory estoppel claim was correctly dismissed, because in any event plaintiffs failed to show that they reasonably relied in May 2010 on a promise that defendant had unambiguously revoked in April 2010 (see MatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 841-842 [1st Dept 2011], lv denied 21 NY3d 853 [2013]). Plaintiffs *500 also failed even to allege, let alone show, injury, since one of them never claimed to have sustained a loss, the second received a full refund of the down payment she had made, and the third testified that the closing on the property she was purchasing was still in “process.” Although plaintiffs now claim that they “los[t] time and money in searching for new apartments,” that loss does not constitute the requisite “unconscionable injury” (see Melwani v Jain, 281 AD2d 276 [1st Dept 2001]; see also Darby Trading Inc. v Shell Intl. Trading & Shipping Co. Ltd., 568 F Supp 2d 329, 341-342 [SD NY 2008]).

Concur— Mazzarelli, J.P., Friedman, Acosta, Andrias and Moskowitz, JJ.

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Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered June 11, 2015, as amended by order, same court and Justice, entered June 16, 2015, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We do not reach the breach of contract claim, since plaintiffs make no argument in support of reinstating it (see Carey & Assoc. LLC v 521 Fifth Ave. Partners, LLC, 130 AD3d 469, 470 [1st Dept 2015]). Were we to address plaintiffs’ argument, raised for the first time in opposition to defendant’s motion (see People v Grasso, 50 AD3d 535, 571 [1st Dept 2008]), that the contested document was not a contract but a written assignment exempt from the requirement of consideration (see General Obligations Law § 5-1107), we would reject it. The documentary evidence demonstrates that defendant intended not to transfer ownership of the property in the present but to “make a testamentary disposition effective only after [his] death, [which] is invalid unless made by will” (Gruen v Gruen, 68 NY2d 48, 53 [1986]).

The promissory estoppel claim was correctly dismissed, because in any event plaintiffs failed to show that they reasonably relied in May 2010 on a promise that defendant had unambiguously revoked in April 2010 (see MatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 841-842 [1st Dept 2011], lv denied 21 NY3d 853 [2013]). Plaintiffs *500 also failed even to allege, let alone show, injury, since one of them never claimed to have sustained a loss, the second received a full refund of the down payment she had made, and the third testified that the closing on the property she was purchasing was still in “process.” Although plaintiffs now claim that they “los[t] time and money in searching for new apartments,” that loss does not constitute the requisite “unconscionable injury” (see Melwani v Jain, 281 AD2d 276 [1st Dept 2001]; see also Darby Trading Inc. v Shell Intl. Trading & Shipping Co. Ltd., 568 F Supp 2d 329, 341-342 [SD NY 2008]).

Concur— Mazzarelli, J.P., Friedman, Acosta, Andrias and Moskowitz, JJ.

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Bluebook (online)

2016 NY Slip Op 8309, 145 A.D.3d 499, 43 N.Y.S.3d 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stein-v-reisner-nyappdiv-2016.

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