Hersko v Hersko
Attorneys and Parties
Brief Summary
Intra-family real estate investment dispute involving alleged forged deed, constructive trust, fiduciary duty, contract, and unjust enrichment claims concerning multiple Brooklyn properties.
The Supreme Court, Kings County, denied defendants’ motion under CPLR 3211(a) [rule allowing dismissal on enumerated grounds, including statute of limitations and failure to state a cause of action] to dismiss the first through eleventh and thirteenth causes of action, denied cancellation of notices of pendency, and denied attorneys’ fees.
The Appellate Division modified to dismiss the 1st, 2nd, 4th, 5th, 6th, 11th, and 13th causes of action; otherwise affirmed, including denial of dismissal of the 3rd, 7th, 8th, 9th, and 10th causes, and the denial of requests to cancel notices of pendency and for attorneys’ fees.
Fraud-based declaratory and equitable claims regarding 1322 59th Street were time-barred by the six-year statute of limitations; RPAPL 1501(1) [action to determine adverse claims to real property] claim to cancel deed (3rd cause) was timely under CPLR 212(a) [10-year limitations period for actions to recover real property]; oral agreements to obtain or assign mortgages (6th, 13th) were barred by General Obligations Law § 5-703(1) [statute of frauds: contracts creating or transferring an interest in real property must be in writing]; unjust enrichment (11th) was duplicative of contract/tort/Article 15 claims under Corsello v Verizon N.Y., Inc. [unjust enrichment unavailable when duplicative of contract or tort claims].
Background
Plaintiffs alleged a series of intra-family real estate transactions in Brooklyn involving four properties: 1322 59th Street (alleged forged deed transferring from plaintiffs to Denissi), 1639 59th Street (loans to Denissi, Malky, and Yidi Wertzberger with an alleged promise to repay and record a mortgage for Barry), 1368 58th Street (alleged misuse of plaintiffs’ funds by Denissi and Toby Khan to purchase title in their names rather than Barry’s), and 5023 15th Avenue (alleged promise by Malky to record a mortgage for Barry and repay loans). Claims included declaratory relief, deed cancellation, constructive trusts, breach of fiduciary duty, breach of contract, and unjust enrichment.
Lower Court Decision
The Supreme Court, Kings County (Sheares, J.), denied defendants’ CPLR 3211(a) motion to dismiss the first through eleventh and thirteenth causes of action, denied cancellation of notices of pendency, and denied attorneys’ fees.
Appellate Division Reversal
Modified on the law: granted dismissal of the 1st and 2nd declaratory judgment claims (fraud-based declarations regarding HF Realty and 1322 59th Street) as untimely under the six-year limitations period; dismissed the 4th (constructive trust re 1322 59th Street) and 5th (unjust enrichment) as time-barred; dismissed the 6th and 13th (breach of contract to obtain/assign mortgages) under General Obligations Law § 5-703(1) [statute of frauds: writing required for interests in real property]; dismissed the 11th (unjust enrichment) as duplicative under Corsello. Affirmed the denial of dismissal for the 3rd (RPAPL article 15 deed cancellation for 1322 59th Street) as timely under CPLR 212(a) [10-year limitations period for actions to recover real property]; the 7th and 10th (breach of fiduciary duty against Denissi) as adequately pled based on close familial/business relationship; and the 8th (deed cancellation) and 9th (constructive trust) for 1368 58th Street as adequately pled. The court otherwise affirmed, including denial of requests to cancel notices of pendency and for attorneys’ fees.
Legal Significance
Clarifies that fraud-based declaratory, constructive trust, and unjust enrichment claims tied to wrongful acquisition of property interests are generally subject to six-year limitations, while RPAPL article 15 forged deed claims fall under the 10-year period in CPLR 212(a). Confirms that oral agreements to grant or record mortgages are unenforceable under the statute of frauds (General Obligations Law § 5-703[1]). Reiterates that unjust enrichment cannot duplicate viable tort or property claims (Corsello), and that fiduciary duties may arise from close familial and business relationships supporting breach claims at the pleading stage.
On a CPLR 3211(a) motion, fraud-based declaratory and equitable claims may be time-barred at six years, oral mortgage promises are void under the statute of frauds, and unjust enrichment cannot duplicate other claims; however, RPAPL article 15 forged deed challenges are timely within ten years and fiduciary duty and constructive trust claims can proceed when adequately pled based on confidential family/business relationships.