Rosenzweig v. Gubner

• Citation: 149 N.Y.S.3d 200,194 A.D.3d 1086
• Decision Date: 26 May 2021
• Docket Number: Index No. 522766/16,2018-12218
• Parties: Joel ROSENZWEIG, et al., appellants, v. Simon GUBNER, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1086
149 N.Y.S.3d 200

Joel ROSENZWEIG, et al., appellants,
v.
Simon GUBNER, etc., et al., respondents.

2018-12218
Index No. 522766/16

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

Submitted—April 8, 2021
May 26, 2021

149 N.Y.S.3d 201

Levi Huebner & Associates, P.C., Brooklyn, NY, for appellants.

Becker & Poliakoff LLP, New York, N.Y. (Glenn H. Spiegel of counsel), for respondents.

HECTOR D. LASALLE, P.J., MARK C. DILLON, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for unjust enrichment and to impose a constructive trust, the plaintiffs appeal from an order of the Supreme Court, Kings County (Debra Silber, J.), dated September 26, 2018. The order, insofar as appealed from, denied the plaintiffs' motion

149 N.Y.S.3d 202

for leave to enter a default judgment on the issue of liability against the defendants, and granted those branches of the defendants' cross motion which were to extend their time to answer the complaint and pursuant to CPLR 3211(a)(7) to dismiss the cause of action to impose a constructive trust.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiffs' motion for leave to enter a default judgment on the issue of liability against the defendants is granted, and those branches of the defendants' cross motion which were to extend their time to answer the complaint and pursuant to CPLR 3211(a)(7) to dismiss the cause of action to impose a constructive trust are denied.

In December 2016, the plaintiffs commenced this action against the defendants, Simon Gubner (hereinafter Gubner), 1225 50th Street Residence Trust (hereinafter the trust), and 1125 50th Street, LLC (hereinafter the LLC), asserting causes action to recover damages for wage violations under the Labor Law, unjust enrichment, and breach of contract, and to impose a constructive trust. The plaintiffs alleged that, for several years, they served as live-in home health aides for Eugene Gubner (hereinafter Eugene), the grandfather of the plaintiff Joel Rosenzweig, in exchange for a promise that, upon Eugene's death, they would receive title to the Brooklyn apartment where he lived, which allegedly was then held by the trust. The plaintiffs alleged that, rather than paying them wages, the defendants promised that the plaintiffs would be entitled to live in the apartment rent free during Eugene's lifetime and that they would receive title to the premises upon Eugene's death. The plaintiffs alleged that, in reliance upon the defendants' promises, they forwent substantial wages and spent considerable sums of their own money caring for Eugene and making improvements to the premises. The plaintiffs claimed that they rendered round-the-clock care to Eugene from approximately April 3, 2010, until March 30, 2013, without receiving any compensation. The plaintiffs alleged that they performed under the terms of the agreement and the defendants failed to transfer title to the apartment. The plaintiffs sought damages or, in the alternative, transfer of the premises to them.

On March 8, 2018, the plaintiffs moved for leave to enter a default judgment against the defendants upon their failure to appear or answer....