Roman Zeltser, appellant, v. Natalia Kukolev, et al., respondents. (2026)

Submitted—February 11, 2026

DECISION & ORDER

C/

In an action, inter alia, to recover damages for trespass, the plaintiff appeals from an order of the Supreme Court, Richmond County (Catherine M. DiDomenico, J.), dated August 22, 2024.  The order, insofar as appealed from, denied that branch of the plaintiff's motion which was pursuant to CPLR 3211(a) to dismiss the defendants' counterclaims.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the first through fifth and eighth counterclaims, and substituting therefor a provision granting those branches of the motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In 2023, the plaintiff commenced this action, inter alia, to recover damages for trespass to a residential property located on Staten Island (hereinafter the subject property).  The defendants interposed an answer asserting, among other things, counterclaims alleging breach of contract (first and second counterclaims), conversion (third counterclaim), breach of fiduciary duty (fourth counterclaim), accounting (fifth counterclaim), unjust enrichment (sixth and seventh counterclaims), and for the partition and sale of the subject property (eighth counterclaim).  According to the defendants, in 2019, the plaintiff and the defendant Natalia Kukolev allegedly entered into an oral agreement pursuant to which Kukolev contributed $25,000 toward the purchase price of the subject property in exchange for an ownership interest in the subject property.  The defendants also alleged that between 2020 and 2022, the defendant Hammerbilt, Inc., an entity incorporated by the plaintiff and Kukolev, loaned $280,000 to the plaintiff in exchange for repayment and an ownership interest in the subject property.

The plaintiff moved, inter alia, pursuant to CPLR 3211(a) to dismiss the defendants' counterclaims.  The defendants opposed the motion.  By order dated August 22, 2024, the Supreme Court, among other things, denied that branch of the motion.  The plaintiff appeals.

Contrary to the Supreme Court's determination, the first and second counterclaims were barred by the statute of frauds.  The statute of frauds prohibits, inter alia, the conveyance of real property without a written contract (see General Obligations Law § 5–703[1] ).  While the statute of frauds permits courts of equity to compel specific performance of an otherwise prohibited agreement in cases of part performance (see id. § 5–703[4] ), the claimed partial performance must be “unequivocally referable” to the alleged agreement (Anostario v. Vicinanzo, 59 N.Y.2d 662, 664 [internal quotation marks omitted];  see Sleeth v. Sampson, 237 N.Y. 69, 73).  It is insufficient that the alleged agreement gives significance to a party's actions.  The relevant inquiry is whether the actions alone would be “unintelligible or at least extraordinary, explainable only with reference to the oral agreement” (Anostario v. Vicinanzo, 59 N.Y.2d at 664 [internal quotation marks omitted];  Roman Catholic Church of the Epiphany v City of New York, 183 AD3d 775, 776 [internal quotation marks omitted] ).  Here, the defendants failed to allege acts of partial performance that were unequivocally referable to the alleged oral agreement sufficient to obviate the need for a writing (see Sleeth v. Sampson, 237 N.Y. at 73;  Barretti v. Detore, 95 AD3d 803, 806–807;  see generally Tikvah Realty, LLC v Schwartz, 43 AD3d 909, 909).

Further, to the extent the defendants contend that their first and second counterclaims allege an oral joint venture agreement, which would not be void under the statute of frauds (see Malaty v. Malaty, 95 AD3d 961, 962), the defendants failed to allege “a mutual promise or undertaking to share the burden of the losses of the alleged enterprise” as required to demonstrate the existence of a joint venture agreement (MacKay v. Paesano, 185 AD3d 915, 916 [internal quotation marks omitted] ).  Thus, the defendants' breach of contract counterclaims were barred by the statute of frauds.  Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the first and second counterclaims.

With respect to the third counterclaim, alleging conversion, the defendants failed to allege “legal ownership or an immediate right of possession to specifically identifiable funds and that the [plaintiff] exercised an unauthorized dominion over such funds to the exclusion of the [defendants'] rights” (Daub v. Future Tech Enter., Inc., 65 AD3d 1004, 1006 [internal quotation marks omitted];  see Ramirez v. Issa, 245 AD3d 844, 847), and thus, the Supreme Court should have directed dismissal of this counterclaim (see Soltanian v. LACYNDA, LLC, 229 AD3d 826, 827;  City of Long Beach v. Agostisi, 221 AD3d 776, 779;  Barker v. Amorini, 121 AD3d 823, 825).

The Supreme Court also should have granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(a) to dismiss the fourth counterclaim, alleging breach of fiduciary duty.  “The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct” (Celauro v. Celauro, 241 AD3d 1258, 1260 [internal quotation marks omitted];  see Philip S. Schwartzman, Inc. v Pliskin, Rubano, Baum & Vitulli, 215 AD3d 699, 702).  Additionally, because the fourth counterclaim alleges breach of fiduciary duty, it is subject to “the more stringent pleading requirements mandated by CPLR 3016(b)” (Tsutsui v. Barasch, 67 AD3d 896, 898;  see Celauro v. Celauro, 241 AD3d at 1260).  “CPLR 3016(b) is satisfied when the facts suffice to permit a ‘reasonable inference’ of the alleged misconduct” (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559, quoting Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492;  see Celauro v. Celauro, 241 AD3d at 1260–1261).  Here, affording the defendants the benefit of every possible favorable inference, the allegations of wrongdoing were insufficient to permit a reasonable inference of the alleged misconduct (see CPLR 3016[b];  Celauro v. Celauro, 241 AD3d at 1261).

With respect to the fifth counterclaim, the defendants' allegations do not state a cognizable cause of action against the plaintiff for an accounting, since the defendants failed to allege that they made a demand for an accounting that the plaintiff refused, or plead facts to demonstrate that such a demand would have been futile (see Mawere v. Landau, 130 AD3d 986, 990;  NAB Constr.  Corp. v. New York City Paper Mill, 265 A.D.2d 312, 312).

Furthermore, the Supreme Court should have granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(a) to dismiss the eighth counterclaim, seeking the partition and sale of the subject property.  Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275).  Here, the plaintiff's evidentiary materials submitted in support of his motion demonstrated that the defendants do not have a cause of action for the partition and sale of the subject property (see RPAPL 901[1];  see generally Paquet v. Murphy, 242 AD3d 1214, 1215).

However, the Supreme Court properly denied those branches of the plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the sixth and seventh counterclaims, alleging unjust enrichment.  “To establish an unjust enrichment cause of action, a plaintiff must allege that (1) the other party was enriched, (2) at that party's expense, and (3) it is against equity and good conscience to permit the other party to retain what is sought to be recovered” (Dee v. Rakower, 112 AD3d 204, 213).  Here, the defendants sufficiently alleged that the plaintiff was enriched at their expense and that it was against equity and good conscience to permit the plaintiff to retain what was sought to be recovered (see City of Long Beach v. Agostisi, 221 AD3d at 779;  Greenberg v. Wiesel, 186 AD3d 1336, 1337–1338;  Alan B. Greenfield, M.D., P.C. v Long Beach Imaging Holdings, LLC, 114 AD3d 888, 889).  Contrary to the plaintiff's contention, where, as here, a quasi contract theory is used to seek recovery of the amount by which the plaintiff allegedly was enriched at the defendants' expense, rather than as an attempt to enforce an oral contract, it is not precluded by the statute of frauds (see Farash v. Sykes Datatronics, 59 N.Y.2d 500, 503;  Litvinoff v. Wright, 150 AD3d 714, 715).  Accordingly, the Supreme Court properly denied those branches of the plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the sixth and seventh counterclaims.

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

IANNACCI, J.P., TAYLOR, LANDICINO and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court