Christou v. Christou

— Order entered May 15, 1984 reversed, on the law, without costs, and defendant George Christou’s motion granted. Appeal from order entered September 11, 1984 dismissed as moot. Memorandum: Special Term erred in refusing to grant defendant’s motion for summary judgment. Plaintiff’s action to enforce an oral contract to convey real property is barred by the Statute of Frauds (General Obligations Law § 5-703 [3]). Nor were there sufficient facts to come within the exception permitting enforcement of the agreement where there has been part performance (General Obligations Law § 5-703 [4]). “There must be performance ‘unequivocally referable’ to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership * * * ‘An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance’ ” (Burns v McCormick, 233 NY 230, 232, quoting Woolley v Stewart, 222 NY 347, 351). In the instant case, plaintiff and her husband, who had been residing at the property and paying half the mortgage and real estate taxes, began paying the full amount after plaintiff’s brother-in-law, whose name appeared on the deed, moved out of the residence. Although this alleged part performance might be consistent with an agreement to convey, it is not unequivocally so. It is equally consistent with a landlord-tenant relationship, and the payment of taxes and the mortgage could be considered rent for the use of the land (Wilson v La Van, 22 NY2d 131, 134-135). Nor has plaintiff established the elements of a cause of action for a constructive trust. The gravamen of a complaint for a constructive trust is a transfer in reliance on a promise which is thereafter not fulfilled (McGrath v Hilding, 41 NY2d 625, 628). 1059 The 1981 agreement involved no transfer by plaintiff. The complaint alleges that defendant George Christou gave up his interest in the New York Bakery in exchange for defendant James Christou giving up his interest in Rose Hill. The complaint concedes that the New York Bakery property had been owned by James, George, and Paul Christou. Plaintiff was not an owner in that property, and thus James’ agreement to relinquish his interest in Rose Hill in exchange for acquiring sole title to the bakery did not involve any “transfer” by plaintiff. Any constructive trust allegedly arising out of the February 1977 transaction was barred by the six-year Statute of Limitations (Scheuer v Scheuer, 308 NY 447). All concur, except Hancock, Jr., and Schnepp, JJ., who dissent and vote to affirm in the following memorandum.