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COURT ORDER WAS AMBIGUOUS AND ERRONEOUS AND COULD NOT THEREFORE BE THE BASIS OF A CONTEMPT FINDING AND SANCTIONS (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a proceeding concerning the guardianship and trust assets of a disabled person, determined the trustee should not have been held in contempt based upon an ambiguous and erroneous court order and sanctions against the trustee were not justified in light of the ambiguity of and error in the order:

… [W]e find that, however uncooperative and dilatory the trustee was, [the court evaluator] did not demonstrate by clear and convincing evidence that the trustee violated a “lawful, clear and unequivocal order” when he did not pay the fee award from the unfunded, unexecuted 2006 SNT [supplemental needs trust] as directed in the ex parte order and when he instead cross-moved to vacate that order … . Moreover, given that the ex parte order referred to an incorrect SNT, which was not funded or executed, an error of which Supreme Court was made aware, the court should have granted the trustee’s motion to vacate the ex parte order … . …

A court may, in its discretion, award any party or counsel in a civil matter “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable [counsel] fees, resulting from frivolous conduct” and “may impose financial sanctions upon any party or attorney” for frivolous conduct … . … However, such sanctions and costs may be imposed “only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate” … . …  [G]iven … the fact that the court orders were ambiguous or directed payment out of an incorrect, unfunded SNT, the trustee’s conduct in response to those orders, much of it based upon the advice of counsel, was not shown to be frivolous … . Matter of James H., 2019 NY Slip Op 00170, Second Dept 1-10-19

 

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GENERAL BUSINESS LAW 349 CAUSE OF ACTION AGAINST A WORKERS’ COMPENSATION LAW TRUST SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department determined that a General Business Law 349 cause of action against a Workers’ Compensation Law trust should not have been dismissed. The trust was taken over by the Workers’ Compensation Board and was found to have a deficit of $220 million. Several lawsuits were brought by members of the trust alleging breach of contract, fraud, breach of a fiduciary duty, etc.:

… [W]ith respect to the General Business Law § 349 cause of action [we] disagree with Supreme Court’s reasoning that the alleged misconduct was not consumer oriented.

“The threshold requirement of consumer-oriented conduct is met by a showing that the acts or practices have a broader impact on consumers at large in that they are directed to consumers or potentially affect similarly situated consumers” … . The amended complaint alleged that “[d]efendants aggressively marketed and advised the [t]rust and self-insurance trusts to the public at large in general as a safe and less expensive alternative to traditional insurance” and that “the information disseminated by [d]efendants was likely to mislead reasonable employers.” The amended complaint further alleged that defendants’ actions “injured and harmed [p]laintiffs, other members of self-insured trusts and the general public” and have “jeopardized the workers’ compensation benefits of New York employers and their employees.” Construing these allegations liberally, as we must, we find that plaintiffs sufficiently alleged that the misconduct at issue was consumer oriented … . Belair Care Ctr., Inc. v Cool Insuring Agency, Inc., 2019 NY Slip Op 00015, Third Dept 1-3-19

 

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MOTION TO SUBSTITUTE THE ADMINISTRATRIX OF PLAINTIFF’S ESTATE FOR THE DECEASED PLAINTIFF PROPERLY DENIED BECAUSE THE DELAY IN SEEKING SUBSTITUTION WAS NOT EXPLAINED, THE MERITS WERE NOT DESCRIBED, AND THE EXISTENCE OF PREJUDICE WAS NOT REBUTTED, HOWEVER THE ACTION COULD NOT BE DISMISSED ABSENT THE SUBSTITUTION OF A LEGAL REPRESENTATIVE (SECOND DEPT).

The Second Department agreed with Supreme Court’s denial of a motion to substitute plaintiff’s daughter, as administratrix, for the deceased plaintiff in an action because the delay in seeking substitution was not explained, the merits of the action were not described, and the presumption of prejudice was not rebutted. But the Second Department noted that the action should not have been dismissed because the plaintiff’s stayed all proceedings pending substitution:

CPLR 1021 provides, in part, that “[a] motion for substitution may be made by the successors or representatives of a party or by any party.” Although a determination rendered without such substitution will generally be deemed a nullity, determinations regarding substitution pursuant to CPLR 1021 are a necessary exception to the general rule, and the court does not lack jurisdiction to consider such a motion … . Here, the Supreme Court had jurisdiction to consider those branches of the motion which were pursuant to CPLR 1015 for leave to substitute the plaintiff’s daughter as the plaintiff and, upon substitution, to restore the action thereafter (see CPLR 1021). On the merits, we agree with the court’s determination to deny those branches of the motion given the failure to provide any detailed excuse for the delay in seeking substitution, the failure to include an affidavit of merit demonstrating that the claim against Rehab was potentially meritorious, and the failure to rebut Rehab’s claim of prejudice stemming from the delay … .

However, since the plaintiff’s death triggered a stay of all proceedings in the action pending substitution of a legal representative … , the Supreme Court should not have directed dismissal of the action pursuant to CPLR 3404, as the order was issued after the plaintiff’s death and in the absence of any substitution of a legal representative … . Medlock v Dr. William O. Benenson Rehabilitation Pavilion, 2018 NY Slip Op 08922, Second Dept 12-26-18

 

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COUNTERCLAIMS AGAINST INDIVIDUAL TRUSTEES RELATED BACK TO THE COUNTERCLAIMS AGAINST THE TRUST AND THEREFORE WERE NOT TIME-BARRED, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the counterclaims against the trustees of the plaintiff workers’ compensation self-insurance trust should not have been dismissed as time-barred because they related back to the counterclaims against the trust:

Supreme Court determined that, because defendant was aware of the identity of the trustees when it interposed its original answer and counterclaims in September 2010, its failure to assert claims against the individual trustees between September 2010 and December 2016 represented “either a strategic litigation decision on its part or a mistake of law,” neither of which it found would entitle defendant to application of the doctrine. We disagree.

There is nothing in the record before us demonstrating that defendant intentionally elected not to assert its counterclaims against the individual trustees and/or that it did so to obtain “a tactical advantage in the litigation” … . A review of defendant’s pleadings demonstrates that it intended to sue the individual trustees … . Although the specific names of the individual trustees could have been ascertained from certain documentation that the trust provided to defendant on an annual basis, “we need no longer consider whether [such a] mistake was excusable” … . Rather, as the Court of Appeals has recognized, the primary question — and “the linchpin of the relation back doctrine” — is whether the newly added party had actual notice of the claim … . As trustees of the trust, we find it implausible that the individual trustees were not aware of the trust’s commencement of this action and the counterclaims that defendant asserted against the trust — such knowledge being imputed to them as trustees … . NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 2018 NY Slip Op 08735 [167 AD3d 1305], Third Dept 12-20-18

 

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ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, determined that the petition seeking letters of administration on the ground that respondents, who were the named executors, had conflicts of interest and had breached their fiduciary duties, should not have been granted. The court explained that named executors can be removed only for serious misconduct, not conflicts of interest. The matter was sent back for a hearing:

“‘[I]t is actual misconduct, not a conflict of interest, that justifies the removal of a fiduciary'”… . Simply put, “a conflict does not make a fiduciary ineligible under SCPA 707, and public policy zealously protects the decedent’s right to name a fiduciary, even one with a conflict” … . Thus, petitioners’ remedy for the alleged conflict of interest lies not in the ineligibility provisions of SCPA 707, but in the provisions of SCPA 702 authorizing the issuance of limited and restricted letters of administration under certain enumerated circumstances.

To that end, SCPA 702 (9) specifically provides for the issuance of limited letters of administration to a party for the purpose of commencing “any action or proceeding against the fiduciary, in his or her individual capacity, or against anyone else against whom the fiduciary fails or refuses to bring such a proceeding.” Indeed, this subdivision is designed to preserve a decedent’s choice of fiduciary “by permitting the appointment of a second limited administrator instead of requiring the disqualification or removal of original fiduciaries where their conflicts of interests preclude them from pursuing claims against themselves or others to the prejudice of other persons interested in the estate” … . For these reasons, we conclude that the conflict alleged did not render respondents ineligible to serve as fiduciaries of decedent’s estate under SCPA 707. Matter of Bolen, 2018 NY Slip Op 08001, Third Dept 11-21-18

TRUSTS AND ESTATES (EXECUTORS, ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT))/FIDUCIARY DUTY (TRUSTS AND ESTATES, EXECUTORS, ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT))/EXECUTORS (TRUSTS AND ESTATES, ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT))

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DECEDENT DIED INTESTATE, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT). ​

The Second Department, reversing Surrogate’s Court, determined deeds executed by decedent’s cotenants should not have been set aside. Because decedent died intestate, the cotenants’ interests in the real property vested upon death and the cotenants could validly convey their interests in the property:

The Surrogate’s Court should not have granted those branches of the petition which sought to set aside the subject deeds and to determine that title to the subject property was vested in the decedent’s estate. When the decedent died intestate, title to the subject property automatically vested in her distributees as tenants in common … . “[W]hen a cotenant who has a partial interest in real property executes a deed that purports to convey full title to the property, the deed is not entirely void; rather, the deed is effective, but only to the extent of conveying the grantor’s interest in the property” … . Matter of Blango, 2018 NY Slip Op 07721, Second Dept 11-14-18

REAL PROPERTY LAW (DECEDENT DIED INTESTATE, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))/TRUSTS AND ESTATES (REAL PROPERTY, COTENANTS, DECEDENT DIED INTESTATE, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))/TENANTS IN COMMON (TRUSTS AND ESTATES, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))/TRUSTS AND ESTATES (REAL PROPERTY LAW, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))/DEEDS (TRUSTS AND ESTATES, TENANTS IN COMMON, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))

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PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined that petitioner had standing to seek the appointment of an administrator of the estate of the decedent who was a party, along with petitioner, is several actions which resulted in appeals pending before the Second Department:

In this proceeding, the petitioner, the founder of Five Towns College, seeks the appointment of an administrator for the estate of John D. Quinn (hereinafter the decedent), a former member of the college’s board of trustees. Prior to the decedent’s death, the petitioner and decedent were parties in a number of actions that resulted in four appeals pending before this Court … . Those appeals were automatically stayed pending the substitution of a legal representative for the decedent pursuant to CPLR 1015(a).

The Surrogate’s Court dismissed the petition, finding that the petitioner lacked standing to bring the petition. The petitioner, in effect, moved for leave to reargue the dismissal of the petition, and upon reargument, the court adhered to its original determination.

Upon reargument, the Surrogate’s Court should have found that the petitioner has standing to bring the petition. SCPA 1002(1) provides, in relevant part, that “a person interested in an action . . . in which the intestate . . . , if living, would be a proper party may present a petition to the court having jurisdiction praying for a decree granting letters of administration to him or to another person upon the estate of the intestate.” In this case, the decedent was named as a party in the actions in which appeals are pending before this Court, and the petitioner, as a defendant in those actions and an appellant before this Court, has an interest in those actions. Thus, pursuant to SCPA 1002(1), the petitioner has standing to petition the Surrogate’s Court for the appointment of an administrator for the decedent’s estate. Matter of Quinn, 2018 NY Slip Op 07433, Second Dept 11-7-18

TRUSTS AND ESTATES (PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/CIVIL PROCEDURE (TRUSTS AND ESTATES, PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/APPEALS (TRUSTS AND ESTATES, CIVIL PROCEDURE, (PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/SURROGATE’S COURT PROCEDURE ACT (SPCA) (PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/CPLR 1015 (TRUSTS AND ESTATES, PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))

UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT).

The First Department determined an unsigned form purporting to make respondent (Cunney) the beneficiary of decedent’s IRA was insufficient and did not constitute substantial compliance:

The Surrogate correctly determined that, despite the decedent’s clear intent to designate respondent Cunney as the beneficiary of her IRAs, Cunney is not entitled to the proceeds of the IRAs in the absence of a signed change of beneficiary form (see EPTL 13-3.2[e][1] [“A designation of a beneficiary or payee to receive payment upon death of the person making the designation . . . must be made in writing and signed by the person making the designation”] …).

Citing the doctrine of substantial compliance, Cunney argues that Morgan Stanley’s Client Data Form for New Personal Accounts filled out in the decedent’s handwriting is sufficient to satisfy the requirement of a signed writing, as that document did not require a signature. However, she cites no authority for excusing the signed writing requirement in the context of a retirement account. Indeed, as the Surrogate noted, even in the insurance context, where strict compliance is not always required … , this Court has rejected the contention that an insured’s specific testamentary disposition of an insurance policy in a will constitutes substantial compliance with the policy’s requirements for effecting a change in the beneficiary of the policy … . Matter of Durcan, 2018 NY Slip Op 07241, First Dept 10-30-18

TRUSTS AND ESTATES (UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT))/ESTATES POWERS AND TRUSTS LAW (EPTL) 13-3.2 (UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT))/IRA (TRUSTS AND ESTATES, UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT))/BENEFICIARIES (IRA, UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT))

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TAX FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined the county’s attempt to foreclose on tax liens was a nullity because the property owners had died and no representative of the estate had been appointed under the Surrogate’s Court Procedure Act (SCPA) or the CPLR. The dissent argued that an in rem proceeding was appropriate:

“[I]t is well established that the dead cannot be sued” … . Accordingly, “[a] party may not commence a legal action or proceeding against a dead person, but must instead name the personal representative of the decedent’s estate” … . …

Although the passage of time is no bar to the County’s enforcement of tax liens (see RPTL 1160), as a general matter, “[t]he remedy for a [party] who faces the running of the Statute of Limitations under these circumstances is to petition the Surrogate’s Court pursuant to SCPA 1002 for the appointment of . . . [a] personal representative of the estate” … . The Surrogate’s Court Procedure Act provides that, depending on the circumstances of the particular case, letters of administration may be granted to “persons who are distributees of an intestate”… , or to certain other individuals including “the public administrator, . . . the chief fiscal officer of the county, . . . the petitioner, in the discretion of the court, or . . . any other person or persons” … .

Similarly, if the death of a party occurs after the commencement of a proceeding or action “and the claim for or against him [or her] is not thereby extinguished[,] the court shall order substitution of the proper parties” (CPLR 1015[a]). “A motion for substitution may be made by the successors or representatives of a party or by any party” (CPLR 1021 …). …

Our dissenting colleague contends, without citation to any positive authority, that in rem proceedings may be properly commenced and maintained against individuals who are known to be deceased so long as the County has provided those deceased individuals with notice of the proceeding in accordance with statutory law. We are unaware of any purpose such notice would serve to the deceased individuals, and unaware of “any method for serving with process those who have moved beyond the vale” … . Matter of Foreclosure of Tax Liens v Goldman, 2018 NY Slip Op 07123, Second Dept 10-24-18

REAL PROPERTY TAX LAW TAX (FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))/TAX LIENS (FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT)/FORECLOSURE (TAX LIENS, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT)).TRUSTS AND ESTATES (TAX LIENS, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))/CIVIL PROCEDURE (TRUSTS AND ESTATES, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))

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ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the complaint stated causes of action for promissory estoppel and a constructive trust. Plaintiff alleged that his mother removed him from her will, not to disinherit him, but to prevent his former wife from sharing in the estate.  Plaintiff and defendant are brother and sister. The agreement regarding the disposition of the estate made between plaintiff and defendant violated the statute of frauds. However promissory estoppel may be applicable:

The amended complaint alleges that, both before the mother’s death and subsequent to it, plaintiff and defendant entered into an oral agreement whereby, essentially, defendant would be the sole heir to the estate, and would, among other things, give plaintiff his 50% share after completion of plaintiff’s divorce, and, until the final transfer of his share of the estate, defendant would maintain a life insurance policy of at least $5 million, with plaintiff as the sole beneficiary. Giving the complaint “the benefit of every possible favorable inference” … , it may be inferred that this oral agreement was in furtherance of the mother’s wishes, as her decision to remove plaintiff from the will was for the sole purpose of denying the former wife any access to the estate, and not an affirmative wish to disinherit plaintiff. In furtherance of the oral agreement, following the mother’s death, plaintiff paid the estate tax from his share of the mother’s life insurance policy.

… “[W]here the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds” … .

Plaintiff here has also sufficiently alleged the elements of his constructive trust claim … . Castellotti v Free, 2018 NY Slip Op 07045, First Dept 10-23-18

CONTRACT LAW (PROMISSORY ESTOPPEL, ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/PROMISSORY ESTOPPEL (ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/CONSTRUCTIVE TRUST (ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/TRUSTS AND ESTATES (PROMISSORY ESTOPPEL, CONSTRUCTIVE TRUST, ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/STATUTE OF FRAUDS (PROMISSORY ESTOPPEL, CONSTRUCTIVE TRUST, ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))

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