Kurlandski v. Kim
| Decision Date | 13 November 2013 |
| Parties | Martin Chaim KURLANDSKI, also known as Chaim Kurlandski, appellant, v. Jae K. KIM, also known as Jen Kim, respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Newman Ferrara LLP, New York, N.Y. (Jarred I. Kassenoff of counsel), for appellant.
Law Office of Allison M. Furman, P.C., New York, N.Y., and Hubell & Associates LLC, New York, N.Y. (Richard A. Hubell of counsel), for respondent (one brief filed).
MARK C. DILLON, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In an action, inter alia, for a judgment declaring that the plaintiff and the defendant each own an undivided one-half interest in a certain condominium unit as tenants-in-common and to permanently enjoin the defendant from taking any action to remove or evict the plaintiff from the condominium unit, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated September 5, 2012, which denied his motion to preliminarily enjoin the defendant from taking any action to evict or remove him from the condominium unit.
ORDERED that the order is affirmed, with costs.
The plaintiff and the defendant were involved in a personal relationship for approximately 10 years. They eventually moved into a condominium unit located in Brooklyn, the ownership of which is the subject of this dispute. According to the defendant, she was the sole purchaser of the condominium. However, according to the plaintiff, he and the defendant orally agreed to purchase the condominium as tenants-in-common, with each owning an undivided one-half interest therein. When the parties ended the relationship, the defendant moved out of the condominium unit, and the plaintiff continued to live there.
The defendant served a 30–day notice of termination upon the plaintiff, alleging that he had no ownership interest in the condominium unit, but was merely her tenant at the condominium unit. In response, the plaintiff commenced this action, inter alia, for a judgment declaring that he and the defendant each owned an undivided one-half interest in the condominium unit as tenants-in-common. The plaintiff also asserted causes of action sounding in breach of contract, breach of the implied covenant of good faith and fair dealing, specific performance, unjust enrichment, constructive trust, partition, and promissory estoppel.
The plaintiff moved to preliminarily enjoin the defendant from evicting or removing him from the condominium unit. The Supreme Court denied the plaintiff's motion for a preliminary injunction. The plaintiff appeals.
To establish the right to a preliminary injunction, the plaintiff must prove by clear and convincing evidence (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the grant of the injunction, and (3) a balance of the equities in the plaintiff's favor ( seeCPLR 6301; Ginsburg v. Ock–A–Bock Community Assn., Inc., 34 A.D.3d 637, 637, 825 N.Y.S.2d 119; Koursiaris v. Astoria N. Dev., 143 A.D.2d 639, 641, 532 N.Y.S.2d 916). Here, the plaintiff failed to meet his burden.
It is undisputed that no written contract conveying a one-half interest in the condominium unit to the plaintiff exists, and that the purchase agreement with the condominium complex owner, the deed, and the mortgage are all in the defendant's name alone. The plaintiff relies solely on an alleged oral agreement between himself and the defendant that they would purchase the condominium unit as tenants-in-common and each own an undivided one-half interest therein.
The statute of frauds prohibits the conveyance of real property without a written contract ( seeGeneral Obligations Law § 5–703[1] ). While the statute of frauds empowers courts of equity to compel specific performance of agreements in cases of part performance ( seeGeneral Obligations Law § 5–703 [4] ), the claimed partial performance “must be unequivocally referable to the agreement” (Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 235, 689 N.Y.S.2d 674, 711 N.E.2d 953). Unequivocally referable conduct is conduct that “is inconsistent with any other explanation” (Richardson & Lucas, Inc. v. New York Athletic Club of City of N.Y., 304 A.D.2d 462, 463, 758 N.Y.S.2d 321; see Barretti v. Detore, 95 A.D.3d 803, 806, 944 N.Y.S.2d 166; 745 Nostrand Retail, Ltd. v. 745 Jeffco Corp., 50 A.D.3d 768, 769, 854 N.Y.S.2d 773).
As evidence of his partial performance, the plaintiff relied on a payment...
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