Defendants Handler, Mendlowitz and Fourth Avenue Enterprises move to dismiss the sixth and seventh causes of action in the complaint pursuant to CPLR 3211(a)(1) upon the ground that certain documentary evidence establishes a defense to these claims as a matter of law and upon such dismissal seek a cancellation of the notice of pendency.^[FN1] [*2]

The documentary evidence submitted by the defendants consists of an Assignment of Contract agreement between the plaintiff and the defendant, Mark Handler, wherein the plaintiff agreed to assign all of his right, title and interest in two real estate contracts which conveyed three adjoining parcels of land. The defendant agreed to accept said assignments and assume all of the obligations of the contracts. The purchase price for the assignment was $420,000 to be paid in two installments, the first of which was $120,000 representing the down payment made by plaintiff for the first contract and $300,000 representing his down payment on the second contract. The defendants contend that this agreement is unambiguous and constitutes the four corners of their obligation and that they assumed no duty beyond that.

The subjects of the motion to dismiss are plaintiff's sixth and seventh causes of action. The sixth cause of action seeks conveyance of title of the premises to himself or damages and costs for the defendant's having "fraudulently induced Plaintiff to enter into an agreement with them to assign Plaintiff's rights under Contract No.1 to Handler, Mendlowitz and 4th Avenue Enterprises as those defendants were advised by plaintiff that Plaintiff would not assign his rights under Contract # 1 without the guarantee of recovering payments already made by Plaintiff under both Contract #1 and #2." The seventh cause of action similarly alleges fraudulent inducement and focuses upon certain "move out" funds and seeks, upon the imposition of a constructive trust thereon, an order enjoining the release from escrow of the funds pending an application for a turn over order.

"In the posture of defendant's CPLR 3211 motion to dismiss, [this Court's] task is to determine whether plaintiff's pleading states a cause of action. The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'. In furtherance of this task, [courts will] liberally construe the complaint and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion. [Courts will] also accord plaintiffs the benefit of every possible favorable inference. Dismissal under CPLR 3211(a)(1) is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law ." 511 West 232nd Owner's Corp. v. Jennifer Realty Co. 98 NY2d 144(2002).

The Assignment of Contract upon which defendants rely for their documentary evidence is rather opaque and does not readily reveal the benefit plaintiff bargained for. Plaintiff seems to gain only that which he laid out or was obligated to lay out in down payments on the real estate contracts. In his affidavit in opposition, plaintiff fills in some of those gaps. Plaintiff asserts that he assisted the defendants in a number of ways in this deal. He negotiated a surrender by the tenant in possession of the premises conveyed under contract number one. The buy out funds connected to this surrender are the subject of the seventh cause of action. Plaintiff also asserts that he negotiated with the contract vendor in contract number one and saved the defendants a $200,000 delay fee. .

Plaintiff explained the reasons for his efforts among which was that fact that the defendants appointed him Vice President of Fourth Avenue Enterprises. (Plaintiff annexes a letter agreement with the tenant in possession that he had executed in that capacity). Plaintiff asserts that he was "promised shares of stock, a directorship and profits as a participant in every [*3]step of the acquisition and ultimate development and disposition of the parcels." He was "supposed to be a partner' to whom the remaining defendants owed a fiduciary duty."

Plaintiff's affidavit continues, reciting that "[b]esides this other consideration, under the written Assignment Defendant Handler was required to pay me $420,000. He only paid me only $120,000 that was equivalent to my down payment under Contract #1. However, by doing so Handler along with his partner' co-defendant Mendlowitz and their entity Forth Avenue Enterprises, Inc., managed to lock up' the development of the land assemblage I had created because they closed on Parcel #1 on October 5, 2004. The assemblage I worked so hard to piece together only had value (at that time) as a residential development at the prices contracted to be paid if the three parcels to be conveyed under the two contracts could be developed collectively. . . But by locking up parcel #1 . . . defendants effectively devalued Parcel #2 as a stand alone parcel. The two parcels had symbiotically enhanced value, being more valuable collectively then individually. I believe that Defendants Handler and Mendlowitz never intended to close on the contract for Parcel #2 and develop the parcels as they represented and promised to me. Instead they held the key to any joint development of Parcel #1 and Parcel #2 by only spending one sixth of the total purchase prices due collectively [for the two parcels]."

Plaintiff sums up saying: "[R]emaining Defendants repeatedly defrauded me because Remaining Defendants made several ongoing material misrepresentations to me. These include the false representations that they: a) were going to close on both parcels; (b)that they were going to develop the parcels into a residential condominium project; ( c ) that they had the financial capacity to do so and (d) would fund development, construction and marketing of a completed residential condominium complex. Furthermore, these misrepresentations were intentionally made to defraud and mislead me, as I had indicated a requirement in my negotiations with Remaining Defendants prior to executing the Assignment that I wanted to see my vision of a condominium on the site of the two Parcels completed. As I explained to them, both Contracts had to close, vacant possession of the Parcels was required, surveying work was required, architectural plans required drafting, an offering plan needed to be prepared, the units had to be marketed and the building had to get built. The Remaining Defendants promised me that they were going to complete the project, but as they were busy with other matters and ventures there was an opportunity for me to assist in development of the project to the extent that I wanted to participate and that I would be well compensated financially for all of my efforts as a co-owner of the developer, a co-sponsor of the condominium, a participant in the profits and a paid consultant on the project. In light of these significant misrepresentations I elected to assign to Handler instead of other parities interested in the assemblage from whom I would have been paid more for no effort. Instead of receiving the benefits of my bargains, I did not even receive the $300,000 or over 70% of the baseline consideration of $420,000 due under the written portion of the Assignment."

Indeed, the Agreement itself supports some of these statements in that it unambiguously calls for the assignment of both real estate contracts and alludes to the construction of a condominium, reciting: "In the event Assignee utilizes the services of [plaintiff-assignor's counsel] for any part of the construction of the building and/or creation of the condominium for the building and in that event Assignee shall in addition reimburse Assignor for any and all fees paid to or billed by [this firm]." [*4]

This Court finds that when the complaint is read together with the plaintiff's affidavit under the principles enunciated above, dismissal upon a theory of documentary evidence is not warranted. However, though a cause of action has been made out, it sounds more in constructive trust, see e.g. Sharp v. Kosmalski, 40 NY2d 119 (1976) then in fraud.

Accordingly, the defendants' motion is granted to the extent that the sixth and seventh causes of action are dismissed with leave granted to the plaintiff to re-plead. Since a cause of action sounding in constructive trust will in fact support a lis pendens, Grossfeld v. Beck, 42 AD2d 844(2d Dept. 1973), the defendant's motion to vacate the lis pendens is granted only to the extent that the lis pendens will be vacated upon renewed motion thirty days from the entry and service of this decision upon the plaintiff unless within that period of time, the plaintiff files an amended complaint.

This constitutes the decision and order of the Court.

J.S.C.

.

The challenge to the complaint herein required this Court to carefully determine whether there was a cognizable cause of action hidden within this poorly framed complaint. We found that indeed a cause of action was made out, but not cast within the appropriate theory of liability. [*5]This can become a difficult issue in the real property context where, inter alia, the continuation of the lis pendens at stake. Since the problem of inartfully framed complaints comes up with some frequency, it is thought that this Court's solution will be of interest to bench and bar.