HERSKO v. HERSKO (2026)

DECISION & ORDER

In an action to recover damages for breach of contract and to impose a constructive trust on real property, the defendants appeal from an order of the Supreme Court, Kings County (Lisa S. Ottley, J.), dated April 25, 2025.  The order, insofar as appealed from, denied that branch of the defendants’ motion which was for summary judgment dismissing the second amended complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging breach of contract, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In August 2021, the plaintiff commenced this action against his nephew, the defendant Morris Hersko, and his nephew's wife, the defendant Sara G. Hersko.  The plaintiff subsequently filed a second amended complaint asserting a cause of action alleging breach of contract and a cause of action to impose a constructive trust on a condominium located in Brooklyn (hereinafter the property).  The second amended complaint alleged, inter alia, that the plaintiff had entered into an oral agreement with the defendants pursuant to which the plaintiff loaned the defendants $700,000 in consideration for the defendants ‘ promise to pay the plaintiff $100,000 in 24 monthly installments and either pay the plaintiff the loan balance by 2017, or convey title to the property to the plaintiff.  The second amended complaint further alleged that the defendants failed to make the requisite monthly payments under the alleged oral agreement, pay the balance of the loan by its maturity date, or convey title to the property to the plaintiff.

The defendants moved, among other things, for summary judgment dismissing the second amended complaint, arguing that the cause of action alleging breach of contract was barred by the statute of frauds and that the second amended complaint was time-barred.  The plaintiff opposed the motion.  In an order dated April 25, 2025, the Supreme Court, inter alia, denied that branch of the defendants’ motion.  The defendants appeal.

“Pursuant to General Obligations Law § 5–701(a)(1), an agreement not reduced to writing is void if, by its terms, it cannot be performed within one year of its making” (Landscape Details, Inc. v. Bernard, 245 A.D.3d 924, 926, 251 N.Y.S.3d 215;  see JNG Constr., Ltd. v. Roussopoulos, 135 A.D.3d 709, 710, 22 N.Y.S.3d 567).  Here, the defendants demonstrated, prima facie, that, by its terms, the alleged oral agreement to repay the loan could not be performed within one year (see Pritsker v. Soyferman, 275 A.D.2d 738, 738–739, 713 N.Y.S.2d 213;  A. Aversa Brokerage v. Honig Ins. Agency, 249 A.D.2d 345, 671 N.Y.S.2d 135).  In opposition, the plaintiff failed to raise a triable issue of fact.

“The statute of frauds requires that conveyances and contracts concerning real property be in writing” (Ramsay v. Garland, 243 A.D.3d 935, 936–937, 247 N.Y.S.3d 402;  see General Obligations Law § 5–703).  “General Obligations Law § 5–703, the more specific statute of frauds provision relating to contracts concerning real property, contains an explicit carve-out, which provides that ‘[n]othing contained in [General Obligations Law § 5–703] abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance’ ” (Korman v. Corbett, 183 A.D.3d 608, 610, 123 N.Y.S.3d 192, quoting General Obligations Law § 5–703[4] ).  However, “the claimed partial performance ‘must be unequivocally referable to the agreement’ ” (Pinkava v. Yurkiw, 64 A.D.3d 690, 692, 882 N.Y.S.2d 687, quoting Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 235, 689 N.Y.S.2d 674, 711 N.E.2d 953).  Here, the defendants demonstrated, prima facie, that enforcement of the alleged oral agreement to convey title to the property to the plaintiff is barred by the statute of frauds (see General Obligations Law § 5–703;  Ramsay v. Garland, 243 A.D.3d at 937, 247 N.Y.S.3d 402).  In opposition, the plaintiff failed to raise a triable issue of fact as to whether he partially performed under the alleged oral agreement so as to excuse the absence of a writing that satisfies the statute of frauds (see Madison Trust Co. v. Starwood I, LLC, 233 A.D.3d 854, 856, 224 N.Y.S.3d 117).

Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging breach of contract.

A cause of action to impose a constructive trust is an equitable remedy that is not subject to the statute of frauds (see Ramsay v. Garland, 243 A.D.3d at 937, 247 N.Y.S.3d 402), which is governed by the six-year statute of limitations provided by CPLR 213(1) (see Quadrozzi v. Estate of Quadrozzi, 99 A.D.3d 688, 690, 952 N.Y.S.2d 74).  The cause of action “begins to run upon the occurrence of the allegedly wrongful act giving rise to a duty of restitution” (Tornheim v. Tornheim, 67 A.D.3d 775, 776, 888 N.Y.S.2d 603 [internal quotation marks omitted];  see Quadrozzi v. Estate of Quadrozzi, 99 A.D.3d at 690, 952 N.Y.S.2d 74).  Here, the defendants failed to demonstrate, prima facie, that the cause of action to impose a constructive trust on the property was time-barred, as that cause of action began to accrue in 2017 when the defendants allegedly defaulted on their obligation under the alleged oral agreement to convey title to the property to the plaintiff (see Quadrozzi v. Estate of Quadrozzi, 99 A.D.3d at 690–691, 952 N.Y.S.2d 74).  Since the defendants failed to meet their prima facie burden, that branch of their motion which was for summary judgment dismissing the cause of action to impose a constructive trust on the property was properly denied, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.