DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, for the reasons set forth on the record it is ORDERED that Motion #002 filed by Defendant Andrea Foglia seeking an order pursuant to CPLR §3212 for summary judgment dismissing the Complaint of Plaintiff Frank D’Acunto’s as to Defendant Foglia is hereby granted. ORDERED that Motion #003 filed by Defendant Barbara Fabiano seeking an order pursuant to CPLR §3212 for summary judgment dismissing the Complaint of Plaintiff Frank D’Acunto’s as to Defendant Fabiano is hereby denied. ORDERED that Motion #004 filed by Plaintiff Frank D’Acunto seeking an order pursuant to CPLR §3212 for summary judgment against Defendants Andrea Foglia and Barbara Fabiano is hereby denied. HISTORY The facts in this case are undisputed. The property located at 75 East Macon Avenue, Staten Island, New York was originally owned by Angelo and Mary D’Acunto. Vincent D’Acunto, the father of the Plaintiff Frank D’Acunto (hereinafter “Plaintiff”), resided in the home with Defendant Barbara Fabiano (hereinafter “Defendant Fabiano”) and paid all the carrying charges, due to an agreement made with the owners, Angelo and Mary D’Acunto. On or about April 11, 1990, Angelo and Mary D’Acunto transferred the property to the Plaintiff without any consideration. On or about January 18, 2001, Plaintiff transferred the property to the Defendant Fabiano. The deed included a recital, “the grantee, its heirs, successors and assigns agree that the signature of the grantor will be required in order to convey or transfer this property, or to encumber this property with any kind of loan or mortgage” (hereinafter “Deed Condition”). After the conveyance in 2001, the Plaintiff did not visit or contribute any additional funds to the maintenance or carrying charges of the property. In fact, Defendant Fabiano encumbered the property with loans and used the proceeds to renovate the premises. On or about August 8, 2018, Defendant Fabiano conveyed title to the property to Defendant Andrea Foglia (hereinafter “Defendant Foglia”) for the purchase price of $565,000. DECISION It is well settled that a motion for summary judgment should be granted if “upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” CPLR 3212(b). The proponent of a motion for summary judgment must make a prima facie showing by offering sufficient evidence to eliminate any material issues of fact from the case that as a matter of law the movant is entitled to summary judgment. Winegrad v. NYU Medical Center, 64 NY2d 851, 853 (1985). In order for the court to grant summary judgment, “it must clearly appear that no material triable issue of fact is presented” and it is not for the court to resolve issues of fact, “but merely to determine whether such issues exist.” See Rebecchi v. Whitmore, 172 AD2d 600 [2d Dept. 1991]. Further, Courts have consistently held that allegations amounting to no more than unsubstantiated conclusory assertions are not sufficient to defeat the motion. Ihmels v. Kahn, 126 AD2d 701 [2d Dept. 1987]. DEFENDANT FOGLIA (Motion #002) Defendant Foglia purchased the property at 75 East Macon Avenue, Staten Island, New York on August 8, 2018 for the sum of $565,000. Plaintiff alleges that the terms of the Deed Condition give him an interest in the property and that he was entitled to half of the proceeds Defendant Fabiano received when she unilaterally sold the property to Defendant Foglia. The Plaintiff alleges that his interest in the property entitled him to impose a constructive trust over the property. Defendant Foglia stated in her Answer that she was a bona fide purchaser for value without any notice of the Plaintiff’s purported interest or claim in the property. As a result, Defendant Foglia claims that she is protected from the imposition of a constructive trust. It is well settled that the 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.” Cerebono v. Price., 7 AD3d 479, 480 [2d Dept. 2004]. A constructive trust is an equitable remedy that is “rooted in the inherent power of the Courts to do equity among the litigants and satisfy the demands of justice.” Kasan v. Perlin, 24 Misc.3d 1063, 877 NYS 2d 851, 856 (Sup. Ct. Nassau Cty. 2009); Galasso, Langione & Botter, LLP v. Galasso, 176 AD3d 1176 [2d Dept. 2009]. Before finding a constructive trust, a court must find indications that there was a relationship of trust and confidence between the parties that would charge the defendant not to abuse the trust and confidence placed in him or her by the plaintiff. Sharp v. Kosmalski, 40 NY2d 119 (1976). The primary issue for this Court is whether there is an existence of a confidential relationship which triggers equitable considerations leading to the imposition of a constructive trust. See Sharp. The Court does not find a confidential relationship between the Plaintiff, the property, and Defendant Foglia. Both Plaintiff and Defendant Foglia testified at their respective depositions that they do not know each other, they have never met, and they have never spoken. The first prong of a constructive trust fails based upon the nonexistence of a relationship between the Plaintiff and Defendant Foglia. The Court will discuss the effect of the deed condition further below in Motions #003 and #004, however, it is noted, a void instrument or condition has no legal effect on the rights of the parties, or of subsequent purchasers, and must be regarded as if it had never been placed on record. 92 NY Jur. 2d Records and Recording §137 (2021 ed.); Ostrander v. Bell, 199 AD 304 (3d Dept. 1921). The deed condition does not impact this Court’s decision that Defendant Foglia is a bona fide purchaser of the property, for valuable consideration. Even if this Court were to consider imposing a constructive trust, a bona fide purchaser takes property free of a constructive trust. Istel v. Istel, 258 A.D.2d 506, 507 [2d Dept. 1999]. Based upon the testimony at deposition and the moving papers, and despite giving the Plaintiff every favorable inference, the motion for summary judgment by the Defendant Foglia is nevertheless granted. PLAINTIFF AND DEFENDANT FABIANO (Motions #003 & #004) Plaintiff and Defendant Fabiano filed cross-motions for summary judgment. Plaintiff alleges that he and Defendant Fabiano had a valid contract regarding the sale of the property entered into by the parties on January 19, 2001 which states, “Frank D’Acunto and Barbara Fabiano are half owners of each of premises known as 75 Macon Street, Staten Island, New York. The parties agree that in the event of a sale of the above property to a bona fide third party, Frank D’Acunto will receive $100,000 or half of the net sales proceeds, whichever is greater, and balance of the net proceeds will go to Barbara Fabiano.” In addition, the Plaintiff claims that the deed condition should have been enforced and that the Defendant Fabiano was unjustly enriched based upon her noncompliance with the contract terms. The question before this Court regarding these parties is whether the deed condition is enforceable, whether there was an enforceable contract between the parties, and whether the Defendant was unjustly enriched. New York courts have long held that when a fee simple title interest in a property is granted, a deed condition that requires the title holder to get the consent of another party in order to convey the property or that otherwise limits their capacity to convey the property as they see fit, is void and of no effect, because a fee simple estate and a restraint upon its alienation cannot in their nature co-exist. See In Re Brower’s Will, 25 Misc. 2d 482, 483-484 [Sur. Ct. 1960); Application of Mazzone, 281 NY 139, 146 [1939]; Livingston v. New York, O. & W. Ry. Co. 193 AD 523, 528 [3d Dept. 1920]; See also 56 NY Jur. 2d Estates, Powers, Etc. 5 [2021 ed.]. Based upon this alone, it would appear that the deed condition on its face is unenforceable. However, as the parties executed a contract simultaneously with the deed on January 19, 2001, the question before this Court is whether the parties’ contract included the deed condition and whether there was a breach of contract. Breach of Contract The elements of a breach of contract claim are (1) the making of an agreement; (2) performance of the agreement by one party; (3) breach by the other party; and (4) damages. Furia v. Furia, 116 AD2d 694 [2d Dept. 1986]. It is clear to this Court, by Plaintiff’s Exhibit K, that the parties had a written contract regarding the Plaintiff receiving proceeds from the sale of the property. Though the Defendant testified at her deposition that she does not remember any contract, it appears that a written contract was executed simultaneously with the deed. Based upon the foregoing, the Court finds an issue of fact exists as to whether the deed condition is enforceable as part of a valid contract between the parties. Therefore, summary judgment is denied on this issue. Unjust Enrichment The Plaintiff also claims that the Defendant Fabiano was unjustly enriched due to the sale of the property. To prevail on a claim of unjust enrichment, “a party must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered.” Citibank, N.A. v. Walker, 12 AD3d 480, 481 [2004]. If found valid, according to the contract between the parties, the Plaintiff was entitled to one half of the proceeds of the sale of the property or $100,000, whichever amount was greater. In this case, there is a question of fact whether the Defendant Fabiano was unjustly enriched at the Plaintiff’s expense. It is unclear to this Court what contributions the Plaintiff made, if any, prior to the deed transfer in 2001. After the deed transfer, the Plaintiff allegedly did not contribute monetarily to the property. He did not pay taxes, insurance, or contribute to the renovation or maintenance of the property. The Defendant Fabiano resided in the home for approximately forty years, contributing to the expenses of the property the entire time. Furthermore, considering all of the efforts made by Defendant Fabiano, it may not be against equity or good conscience to permit her to retain what the Plaintiff is seeking to recover. Based upon that question alone, summary judgment on the claim of unjust enrichment is denied. As a result of the foregoing, Motions #003 and Motions #004 for summary judgment are hereby denied. CONCLUSION Accordingly, it is ORDERED that Motion #002 filed by Defendant Andrea Foglia seeking an order pursuant to CPLR 3212 for summary judgment dismissing the Complaint of Plaintiff Frank D’Acunto’s as to Defendant Foglia is hereby granted. ORDERED that Motion #003 filed by Defendant Barbara Fabiano seeking an order pursuant to CPLR 3212 for summary judgment dismissing the Complaint of Plaintiff Frank D’Acunto’s as to Defendant Fabiano is hereby denied. ORDERED that Motion #004 filed by Plaintiff Frank D’Acunto seeking an order pursuant to CPLR 3212 for summary judgment against Defendants Andrea Foglia and Barbara Fabiano is hereby denied. This constitutes the Decision and Order of the Court. Dated: November 30, 2021
