PERELMAN v. TRAUBE

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Abraham Eliezer PERELMAN, et al., Plaintiffs-Appellants, v. Leon TRAUBE, et al., Defendants-Respondents.

Decided: April 12, 2001

ROSENBERGER, J.P., WILLIAMS, ANDRIAS, WALLACH and SAXE, JJ. John R. Horan, for Plaintiffs-Appellants. Barry R. Fertel, for Defendants-Respondents.

Judgment, Supreme Court, New York County (Jane Solomon, J.), entered April 3, 2000, which, after a nonjury trial, dismissed the complaint, unanimously affirmed, without costs.

Plaintiffs, a brother and sister, sued their sister, her husband, and a corporation owned by defendant sister, for imposition of a constructive trust on certain real property that the siblings' deceased father allegedly caused to be transferred to the defendant corporation, purportedly so that such property would be held in trust by defendants for the collective benefit of all three siblings. The trial court's finding that plaintiffs had failed to prove that defendants made any promise to hold and manage the property for the benefit of all three siblings, on which basis the complaint was dismissed, is fully supported by the record, since no such promise, express or implied, was documented, attested to by any witness, or inferable from the circumstances of the alleged transfer (see, Bankers Sec. Life Ins. Socy. v. Shakerdge, 49 N.Y.2d 939, 940, 428 N.Y.S.2d 623, 406 N.E.2d 440;  Whalen v. Harvey, 235 A.D.2d 792, 794, 653 N.Y.S.2d 159, lv. denied 89 N.Y.2d 816, 659 N.Y.S.2d 857, 681 N.E.2d 1304).   The circumstance that the name of the defendant corporation appears to be an acronym of the names of the three siblings is not, by itself, sufficient to prove such a promise, nor do the provisions of the father's will constitute evidence of any promise by defendants.   We note that no related claim of the father's estate, which is being administered in Great Britain, was at issue in this action, notwithstanding that plaintiffs are the estate's British administrators, c.t.a., since the complaint purports to assert only plaintiffs' individual claims, only plaintiffs' individual claims were submitted at trial, and the ancillary administrator, c.t.a., who was appointed by the Surrogate's Court and commenced a related discovery proceeding in that forum, never became a party hereto (Gibb v. Chisholm, 204 Misc. 892, 894-895, 126 N.Y.S.2d 150).