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QUESTIONS OF FACT ABOUT WHETHER PART PERFORMANCE DEFEATED THE STATUTE OF FRAUDS DEFENSE TO THE ALLEGED ORAL CONTRACT AND WHETHER THE PROPERTY WAS HELD AS A CONSTRUCTIVE TRUST PRECLUDED SUMMARY JUDGMENT; PLAINTIFF ALLEGED HE PROVIDED FUNDS TO DEFENDANT TO PURCHASE PROPERTY WHICH. PURSUANT TO THE ORAL AGREEMENT, WOULD BE TRANSFERRED BY DEFENDANT TO PLAINTIFF (SECOND DEPT).

The Second Department, affirming the denial of defendant’s summary judgment motion, determined there were question of fact about (1) whether part performance defeated the statute of frauds defense, (2) whether there was a fiduciary relationship between plaintiff and defendant and (3) whether the property was therefore held by defendant as a constructive trust. Plaintiff and defendant were close friends. Plaintiff alleged, pursuant to an oral agreement, he provided funds to defendant for the purchase of property which plaintiff would manage until defendant transferred it to the plaintiff. The defendant alleged there was no such agreement, plaintiff did not provide funds for the purchase of the property and defendant owned the property outright:

… [W]hile the plaintiff’s work in negotiating the purchase of the subject property and in managing it might be susceptible to other explanations, his contribution of approximately $1.5 million toward its purchase, albeit partially in the form of loans from the defendant, would be “unintelligible or at least extraordinary” without reference to the alleged oral agreement … . Accordingly, the Supreme Court properly determined that although the defendant demonstrated, prima facie, that the alleged oral agreement was barred by the statute of frauds, the plaintiff raised a triable issue of fact regarding part performance … . …

The four factors to be considered in ascertaining whether the imposition of a constructive trust is warranted are the existence of a fiduciary or confidential relationship, a promise, a transfer in reliance thereon, and unjust enrichment … . …

… [T]he transaction between the plaintiff and the defendant was not arm’s length but rather took place in the context of a friendship characterized not only by shared interests, cultural affiliations, and personal trust, but also by reliance on one another in business matters, including loans in the hundreds of thousands of dollars. While any single factor might not be sufficient, by itself, to establish a fiduciary relationship … . …

… [T]he terms of the agreement as described by the plaintiff and as evidenced by the parties’ actions are not fatally indefinite. The “doctrine of definiteness” … should not be “applied with a heavy hand” … . …

… [T]he plaintiff’s promise to manage the property and pay its expenses was “a specific, bargained for legal detriment” irrespective of its value to the defendant … . Accordingly, the alleged oral agreement does not fail for lack of consideration. Toobian v Golzad, 2021 NY Slip Op 02185, Second Dept 4-7-21

The trial in this matter was held, plaintiff prevailed, and the Second Department affirmed: Toobian v Golzad, 2021 NY Slip Op 02186, Second Dept 4-7-21

 

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