Doria v. Masucci

• Decision Date: 12 August 1996
• Citation: 230 A.D.2d 764,646 N.Y.S.2d 363
• Parties: William DORIA, Jr., Appellant, v. Nicholas MASUCCI, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 363

646 N.Y.S.2d 363

230 A.D.2d 764

William DORIA, Jr., Appellant, v. Nicholas MASUCCI, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Aug. 12, 1996.

Caruso & Dillon, P.C., Mamaroneck (John M. Dillon, of counsel), for appellant.

Brotmann & Freedman, White Plains (Susan Freedman, of counsel), for respondents.

Before MILLER, J.P., and RITTER, SANTUCCI and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for the imposition of a constructive trust, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Nastasi, J.), entered September 14, 1995, which, inter alia, granted the defendants' motion to dismiss the complaint, and (2) an amended judgment of the same court dated October 18, 1995, which, inter alia, is in favor of the defendants and against the plaintiff. The plaintiff's notice of appeal from the judgment dated September 29, 1995, is deemed a premature notice of appeal from an amended judgment of the same court dated October 18, 1995 (see, CPLR 5520[c] ).

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the amended judgment is affirmed; and it is further ORDERED that the defendants are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the amended judgment (CPLR 5501[a][1].

In 1980, the plaintiff's maternal grandmother conveyed her home in Harrison, New York, to the defendants, the plaintiff's aunt and uncle. In 1995, after both of the plaintiff's parents had died, the defendants contracted to sell the home. The plaintiff commenced this action, inter alia, for the imposition of a constructive trust, alleging that his grandmother had conveyed the property to the defendants upon the condition that they hold one-half in trust for his mother. Upon motion of the defendants, the court dismissed the complaint. We affirm.

In considering a motion to dismiss for failure to state a cause of action (see, CPLR 3211[a][7] ), the pleadings must be liberally construed (see, CPLR 3026). The sole criterion is whether "from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; see also, Bovino v. Village of Wappingers Falls, 215 A.D.2d 619, 628 N.Y.S.2d 508). The facts pleaded are to be presumed to be true and are to be accorded every favorable inference, although bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration (see, Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Gertler v. Goodgold, 107 A.D.2d 481, 487 N.Y.S.2d 565, affd. 66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, supra, at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). This entails an inquiry into whether or not a material fact claimed by the pleader is a fact at all and whether a significant dispute exists regarding it (see, Guggenheimer v. Ginzburg, supra, at 275, 401...