Vanasco v. Angiolelli

97 A.D.2d 462, 467 N.Y.S.2d 434, 1983 N.Y. App. Div. LEXIS 20059

Opinion

In an action, inter alia, to impress a constructive trust upon real property, the defendant appeals from an order of the Supreme Court, Queens County (Lerner, J.), dated July 1,1983, which denied her motion, inter alia, to dismiss the complaint on the ground of the Statute of Frauds, and for summary judgment dismissing the complaint and granting her judgment on her counterclaim. Order affirmed, without costs or disbursements. The complaint states a cause of action and there are triable issues of fact with respect to the plaintiff’s complaint and the defendant’s counterclaim (Sharp v Kosmalski, 40 NY2d 119; Farano v Stephanelli, 7 AD2d 420). In an action to impress a constructive trust upon real property, the Statute of Frauds is not a defense. Such a trust, by its very nature, does not require a writing (Ozkahveci v Ozkahveci, 91 AD2d 656, 657; Crane v Crane, 77 AD2d 858). Therefore, the absence of a writing in the instant case does not warrant dismissal of plaintiff’s complaint. We further note that on this record, there appears to be a serious question of whether there was an effective delivery to defendant of the deeds to the subject property. “While the execution and recording of a deed may give rise to a presumption of delivery and acceptance * * * that presumption is not conclusive and may be repelled by proof of facts inconsistent with the transfer of title * * * It is the intention of the parties that governs” (Diamond v Wasserman, 8 AD2d 623; see, also, Winick v Winick, 26 AD2d 663). Mollen, P. J., Thompson, Rubin and Boyers, JJ., concur.