Scott Mollen, Partner at Herrick, Feinstein LLP

Constructive Trust—Partition—Transfer Allegedly Void for Lack of Consideration and Failure of Contractual Condition Precedent—Unjust Enrichment—Issue of Fact as to Whether Draft Deed Was Ever Released From Escrow and Transfer Completed—Partition Claims Dismissed—Motion To Amend Pleading Denied as Untimely and Prejudicial

This decision involved an "intra-family property dispute" between "the plaintiff …, acting in her capacity as the administrator of the estate of ("A"), and defendant…, the plaintiff and the deceased's son who is the owner" of the subject property (property).

The defendant and "A" worked together in a business until "A" died. The plaintiff alleged that on May 12, 2004 the defendant and "A" entered into an "Operating Agreement for the formation and governance" of an LLC (LLC). She alleged that thereafter, the defendant agreed to transfer the property from himself alone to the LLC, in exchange for a financial contribution from "A." Although the deed transferring the property had been produced, that deed was never recorded.

The court stated that the "key issue" was "whether there was a transfer of the… property from (defendant) in his individual capacity to (LLC)."