Blank v Acker
Attorneys and Parties
Brief Summary
Real property and trusts/estates (oral promises to convey or bequeath real estate), contracts (statute of frauds), and defamation in a financial services context.
The Supreme Court, Nassau County, denied defendants’ CPLR 3211(a) motion to dismiss, allowing all claims to proceed.
The Appellate Division reversed and granted the CPLR 3211(a) motion, dismissing the complaint in its entirety.
Claims to enforce an alleged oral agreement to transfer real property are barred by the statute of frauds under General Obligations Law § 5-703 [requires a written contract for conveyance of real property]; an alleged agreement to make a testamentary disposition is unenforceable absent compliance with EPTL 13-2.1(a)(2) [agreement to make a testamentary disposition must be in a signed writing]; and dismissal is proper under CPLR 3211(a)(5) [allows dismissal where the action may not be maintained because of the statute of frauds]. The emails and will provisions lacked essential terms or were revocable, part performance was not unequivocally referable, promissory estoppel lacked allegations of unconscionable injury, unjust enrichment was barred by leases addressing improvements, and the alleged defamatory statements were nonactionable opinions.
Background
Plaintiff Adam Blank, who served for years as an executive, attorney, and trustee for the Acker family, alleged that in 2013 Harold Acker promised to build and bequeath a house to him. Plaintiff moved into the house in 2015 under a lease with automatic renewals. After a family rift in 2016, David Acker allegedly reaffirmed Harold’s promise and agreed to leave the house to plaintiff upon David’s death, purportedly reflected in two 2016 emails and provisions of David’s will. In 2019, at David’s request, plaintiff signed a new lease. Plaintiff alleges he invested millions in renovations and maintenance while living there. In summer 2022, David and Spencer Acker allegedly made false statements about plaintiff’s trust management, harming his reputation. In August 2022, David said he would not bequeath the house, and on December 15, 2022, plaintiff received a notice terminating the lease effective July 31, 2023. Plaintiff sued for specific performance, promissory estoppel, constructive trust, declaration of equitable ownership, breach of oral agreement, unjust enrichment, and defamation per se.
Lower Court Decision
The Supreme Court, Nassau County (Gianelli, J.), denied defendants’ CPLR 3211(a) motion to dismiss, allowing all seven causes of action to proceed.
Appellate Division Reversal
Reversing with costs, the Appellate Division granted defendants’ CPLR 3211(a) motion and dismissed all claims. Contract-based claims (specific performance, declaratory/equitable ownership, breach of oral agreement) were barred by the statute of frauds (General Obligations Law § 5-703), as the emails lacked essential terms and will provisions are revocable and not contracts under EPTL 13-2.1(a)(2). Alleged part performance was not unequivocally referable. Promissory estoppel failed for lack of unconscionable injury. Constructive trust failed because plaintiff did not plead a fiduciary/confidential relationship beyond arm’s-length dealings among sophisticated parties. Unjust enrichment was barred by the leases, which provided that improvements would revert to the landlord upon termination. The defamation claim failed because the challenged statements were subjective evaluations not capable of being proven true or false and thus nonactionable opinion.
Legal Significance
The decision reinforces that oral promises to convey or bequeath real property are unenforceable absent writings satisfying the statute of frauds (General Obligations Law § 5-703) and EPTL 13-2.1(a)(2). Wills are revocable and not contracts; emails must contain all essential terms. Part performance must be unequivocally referable to the alleged contract. Promissory estoppel requires a showing of unconscionable injury to overcome the statute of frauds. Express lease terms governing improvements foreclose quasi-contract recovery. Defamation claims must be based on provably false factual assertions, not opinion.
Absent a signed writing with essential terms, courts will not enforce oral promises to transfer or devise real property; revocable will provisions and vague emails are insufficient. Lease language can bar unjust enrichment for improvements. Defamation claims require specific, false statements of fact, not subjective critiques.