By order to show cause filed on June 16, 2006, 240 Hull Street Corporation (hereinafter HSC) moves pursuant to CPLR §1012(a)(3) for an order permitting it to intervene in the instant action and deeming its proposed verified answer, dated June 13, 2006, served on all parties. HSC also seeks an order dismissing plaintiffs' complaint pursuant to CPLR §§§ 3211 (a) (1), (5) and (7) and granting summary judgment on its counterclaim for a declaratory judgment against plaintiffs pursuant to Article 15 of the RPAPL. Furthermore, HSC seeks an order cancelling a notice of pendency filed against the premises known as 200 Polaski Street, Brooklyn, New York (hereinafter the subject property), or in the alternative, compelling the plaintiffs to post an undertaking or security in the amount of at least five hundred thousand dollars ($500,000.00). Defendants Catherine Francis Lorrainey (hereinafter Lorrainey), Sutton Land Service, LLC (hereinafter Sutton) and Satwiz Realty LLC (hereinafter Satwiz) have neither appeared in the action nor responded to the instant order to show cause.

On September 13 and 27, 2006, respectively, plaintiffs served HSC with an affirmation and a memorandum of law in opposition to HSC's instant order to show cause. On September 28, 2006, HSC served its reply. On July 7, August 18, and September 29, 2006, plaintiffs and HSC appeared in Part 52 of this court for oral argument on the motion. On September 29, 2006, plaintiffs provided HSC with a copy of their proposed amended verified complaint and an affidavit of plaintiff Joseph Andrew (hereinafter Mr. Andrew).

On September 29, 2006, this court reserved decision on HSC's application to dismiss the complaint; remove the notice of pendency and declare HCS the lawful owner of the subject property. This court also ordered the following with the consent of the plaintiffs and HSC and on default against defendants Lorrainey, Sutton and Satwiz the following. HSC is added as a defendant, consent to personal jurisdiction and accepts service of the plaintiffs' amended verified complaint. The court deems HSC's proposed verified answer served on all parties and will apply HSC's order to show cause and proposed verified answer to plaintiffs' amended verified complaint.

On June 25, 2004, plaintiffs commenced the instant action by filing a summons and [*2]complaint with the Kings County Clerk's office. On October 13, 2005, plaintiffs filed a notice of pendency pertaining to the subject property. By amended verified complaint dated September 13, 2006, plaintiffs allege sixteen allegations of fact to support an order vacating the sale of the subject property by Lorrainey to Satwiz and by Satwiz to HSC. Plaintiffs also seek costs, disbursements and attorney's fees for prosecuting the action. Mr. Andrew is the father of plaintiff Pamela Denise Andrew (hereinafter Ms. Andrew) and defendant Lorrainey.

Plaintiffs' complaint makes the following allegations of fact. In or about July of 1998, Ms. Andrew, a resident of England, sent money to her half-sister, Lorrainey to place a bid at a public auction for the subject property. The subject property is located adjacent to a property owned and occupied by their father. Lorrainey participated in the auction accompanied by their father and succeeded in placing the winning bid. She then paid for the subject property with her sister's funds and some of their father's money.

Lorrainey recorded title to the subject property in her name with the intent to hold it in trust for Ms. Andrew. Ms. Andrew, Lorrainey and Mr. Andrew agreed that Mr. Andrew would pay all taxes and charges needed to maintain the subject property. No part of the agreement was in writing. Defendants Lorrainey, Satwiz and HSC, knowing that Lorrainey was holding the property in trust for Ms. Andrew, allegedly conspired to defeat her interest by two real estate transactions. The first was Lorrainey's sale to Satwiz of the subject property in December of 2003 for forty thousand dollars ($40,000.00), without Ms. Andrew's consent. The second was Satwiz sale to HSC. On June 15, 2004, Satwiz made changes to the subject property. On June 25, 2004, plaintiffs commenced the instant action. On August 12, 2004, plaintiffs secured a court order restraining Satwiz and Lorrainey from selling or developing the subject premise. Thereafter, Satwiz sold the property to HSC as part of the continued scheme to defeat Ms. Andrew's interest.

HSC verified answer contain thirty eight allegations of fact in support of seven defenses and one counterclaim. The first defense is that the complaint is premised on an agreement between plaintiffs and Lorrainey which violates the statute of frauds. The second and sixth is that the complaint fails to state a cause of action against HSC. The third is that HSC is a bona fide purchaser for value. The fourth is that plaintiffs have failed to take a default within one year against Lorrainey and Satwiz and therefore may not obtain a judgment vacating their deeds. The fifth is that the complaint is barred by laches. The seventh is that plaintiffs' interest in the subject property is void. HSC's sole counterclaim seeks a declaratory judgment that it is the lawful owner of the subject property based on its purchase of same from Satwiz on September 28, 2004 and its recording of the sale on October 19, 2004 with the Office of the City Register of New York (OCR).

HSC's order to show cause consists of the affirmation of its counsel and eleven annexed exhibits. The first is an affidavit of Yoram Hillel, HSC's president and sole shareholder, advising that he purchased the subject property from Satwiz on September 28, 2004 and duly recording the conveyance with OCR on October 19, 2004. He further alleges no knowledge of plaintiffs' claim against the other named defendants prior to the time he recorded his purchase. The second is a printout obtained from the Kings County Clerk's a office setting forth the filings in the instant action. The third is HSC's proposed verified answer and counterclaim. The fourth [*3]is an affirmation of HSC's counsel on the sale in which he explains the checks, totaling $160,492.00, issued at the closing to purchase the subject property. The fifth, marked Exhibit A, is a decision and order of this court issued May 18, 2006. The sixth, marked Exhibit B is plaintiffs' original summons and complaint. The seventh, marked exhibit C is a copy of the deed for the subject premise between Satwiz and HSC and a certification by HSC's counsel that it is a true copy of the original recorded on October 19, 2004 with OCR. The eighth, marked exhibit D, is Chicago Title Insurance's policy on the subject premise The ninth, marked exhibit E, are copies of the closing checks issued by HSC's counsel which were referenced in the fourth exhibit. The tenth, marked exhibit F is the notice of pendency dated September 30, 2005 on the subject property. The eleventh, marked exhibit G is a copy of the deed for the subject premise between Lorrainey and Satwiz and a certification by HSC's counsel that it is a true copy of the original recorded on February 24, 2004 with OCR.

Plaintiffs' opposition papers consist of an affirmation of their counsel, a memorandum of law, their proposed amended verified complaint, and an affidavit of Mr. Andrew.

HSC's reply consists of the affirmation of their counsel and two annexed exhibits. Exhibit A is a copy of the deed for the subject premise between Lorrainey and Satwiz and a copy of the deed between Satwiz and HSC as filed with OCR. Exhibit B is the affirmation of Mr. Andrew speaking of the agreement between his himself and his daughters, Ms. Andrew and Lorrainey.

CPLR §1012(a)(3) provides for intervention as of right by any person in an action involving title or a claim for property in which the intervener may be affected adversely by the judgment.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]).

CPLR §3211(a) provides in pertinent part: A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

(1) a defense is founded upon documentary evidence; or...

(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, statute of frauds; or

(7) the pleadings fails to state a cause of action...

HSC seeks dismissal of plaintiffs' complaint pursuant to CPLR §§§3211(a)(1), (5) and (7). Under CPLR §3211(a)(1) a dismissal is warranted only where the documentary evidence presented conclusively establishes a defense to the claims as a matter of law (Leon v. Martinez, [*4]84 NY2d 83 at 87-88[1994]). HSC's motion to dismiss pursuant to CPLR§3211(a)(5) asserts that the complaint is barred by the statute of frauds because it was based on an oral agreement pertaining to real property and was not reduced to a writing as required by New York General Obligations Law § 5-703.

New York General Obligations Law § 5-703(1) addresses conveyances and contracts concerning real property required to be in writing and provides in pertinent part as follows:

An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing...

A motion to dismiss pursuant to CPLR §3211(a)(7) alleges that the pleadings fail to state a cause of action. In determining a motion pursuant to CPLR §3211(a)(7), the court must determine whether the facts as alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83 at 88-89 [1994]). This particular motion serves as the mechanical expedient for bringing to the court's attention a ground that supports an early dismissal of a cause of action and involves the entire range of the substantive law. Whether or not a pleader has a cause of action is the most singularly substantive of all questions (see generally, Siegel, New York Practice 4th ed §265). The criterion for a motion to dismiss, pursuant to CPLR §3211(a)(7) is whether plaintiffs have any cause of action not whether they have technically stated such a cause of action (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]).

Examining plaintiffs complaint liberally and accepting as true all the allegation of fact contained therein, the court finds that plaintiffs have adequately pleaded a cause of action seeking imposition of a constructive trust. Generally, a constructive trust may be imposed if the court finds: (1) a confidential relationship; (2) a promise, express or implied; (3) a transfer made in reliance upon such promise, and resulting unjust enrichment (Sharp v. Komalski, 40 NY2d 119 at 121 [1976]; see also Modica v. Modica, 15 AD3d 635 [2nd Dept 2005]). A confidential or fiduciary relationship has been described as a "relationship arising out of a close and intimate association which creates and inspires trust and confidence between the parties so associated" (106 NY Jur 2d Trust §157). "[A] fiduciary relationship is one founded upon trust or confidence reposed by one person in the integrity and fidelity of another"(Penato v. George, 52 AD2d 939 at 942 [2nd Dept. 1976]). For purposes of determining liability, the question of whether a relationship is a fiduciary one is a question of fact for the jury (Langford v. Roman Catholic Dioceses of Brooklyn, 271 AD2d 494 at 503 [2nd Dept. 2000]).

Here plaintiffs describes a promise made between siblings and their father, money advanced to purchase the subject property in reliance of the promise, and acts by the defendant sister repudiating the promise. Ms Andrew's complaint asserts that she is the true owner of the subject premise. The court finds implicit in the pleadings that Lorrainey, has unjustly enriched herself by improperly selling that interest to Satwiz without forwarding to Ms. Andrew the proceeds of the sale (Ackerman v. 305 East 40th Owners Corp.,189 AD2d 665-666 [First Dept. 1993]). The pleadings support a cause of action for imposition of a constructive trust. [*5]

Inasmuch as plaintiffs have stated a cause of action, the inquiry becomes whether any of HSC's asserted defenses convincingly defeat plaintiffs' complaint as a matter of law. The statute of frauds, however, does not furnish a defense to a cause of action seeking to impress a constructive trust on real property (Amendola v. Kendzia, 17 AD3d 1105, at 1107 [4th Dept. 2005] citing Dombek v. Reiman, 298 AD2d 876, 877 [4th Dept. 2002]).

HSC also asserts that it is a bona fide purchaser for value. Pursuant to Real Property Law §266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller (Fischer v. Sadov Realty Corp.,34 AD3d 630 [2nd Dept 2006] citing, Karan v. Hoskins, 22 AD3d 638 [2nd Dept. 2005]). "It is only if the 'facts within the knowledge of the purchaser are of such a nature, as, in reason, to put him upon inquiry, and to excite the suspicion of an ordinarily prudent person and he fails to make some investigation, [that] he will be chargeable with that knowledge which a reasonable inquiry, as suggested by the facts, would have revealed' " (Miner v Edwards, 221 AD2d 934 [4th Dept. 1995], quoting Anderson v Blood, 152 NY at 293 [1897]).

HSC alleges that it purchased the subject property for valuable consideration with no knowledge of the plaintiffs' claim of ownership, that it duly recorded its deed, that plaintiffs' interest in the subject property was unrecorded, and that plaintiffs were guilty of laches in enforcing its rights. HSC's documentary evidence demonstrates that it purchased the subject property from Satwiz on September 28, 2004 and paid nearly four times the price Satwiz spent to buy the property from Lorrainey.

HSC's has presented prima facie evidence that it is a bona fide purchaser for value in that it purchased the subject parcels for valuable consideration without knowledge of either the alleged oral agreement between plaintiffs and Lorrainey or the restraining order against the co-defendants (Emerson Hills Realty, Inc., v. Mirabella, 220 AD2d 717 [2nd Dept. 1995] citing Real Property Law §266; Berger v. Polizzotto,148 AD2d 651-652 [2nd Dept. 1989].

The court is mindful that discovery has not yet commenced in the instant action. However, plaintiffs have not invoked CPLR §3212(f) to oppose the motion on this basis. It would be plaintiffs' burden to show that discovery would lead to competent evidence in support of their cause of action (Younger v. Spartan Chemical Co., 252 AD2d 265 [3rd Dept. 1999]). This they have not done.

Plaintiffs opposition papers to HSC's instant order to show cause does not contain a copy of the restraining order directed against Lorrainey and Satwiz. There is no affidavit from Ms. Andrew. The underlying complaint is verified by plaintiffs' counsel and demonstrates no personal knowledge of the allege facts. It therefore may not serve as a sworn statement of Ms Andrew. The affirmation of their counsel in opposition to the motion repeats the allegation of the complaint and, once again, demonstrates no personal knowledge of the alleged facts. It therefore lacks probative value (Zuckerman v. City of New York, 49 NY2d 557 [1980]; see also Feratovic v. Lun Wah, Inc., 284 AD2d 368-369 [2nd Dept 2001]). The burden of a party opposing a motion for summary judgment is not met merely by repeating or incorporating by reference the allegations contained in the pleadings or bills of particulars (Alvarez v. Prospect Hospital, 68 NY2d 320 at 327 [1986] citing Indig v. Finkelstein, 23 NY2d 728,729 [1968]). Mr. Andrew's affidavit reveals no claim that he owns the subject property. Rather, he makes conclusory allegations of fact concerning the intent and mental state of Ms Andrew without setting forth the basis of his knowledge or conclusions. He does not allege or claim actual or constructive knowledge by HSC of plaintiffs' interest in the subject property, nor does he claim HSC's knowing participation in a scheme to defeat plaintiffs' interest. [*6]Plaintiffs' opposition papers do not deny that its alleged interest in the subject property was unrecorded, that HSC purchased the property for valuable consideration or that HSC did not have actual notice of plaintiffs' alleged rights over subject property.

Plaintiffs have therefore failed to raise an issue of fact on whether HSC was a bona fide purchaser for value. Plaintiffs complaint against HSC is dismissed. Further discussion of HSC other asserted defenses is unnecessary. Plaintiffs' complaint also included a request for costs, disbursements and attorney's fees for prosecuting the action. It is well settled in New York that a prevailing party may not recover attorney's fees from a losing party except where authorized by statute, agreement, or court rule (U.S. Underwriters, Ins Co., v. City Club Hotel, LLC, 3 NY3d 592 at 597 [2004]. Here the plaintiffs have not prevailed and have offered no other basis for an awarding of attorney's fees or costs. Plaintiffs claim for costs, disbursements and attorney's fees must be therefore be dismissed.

Plaintiffs claim against Lorrainey, Sutton and Satwiz are severed.

Pursuant to Article 15 of the RPAPL, HSC seeks an accelerated judgment on its first counterclaim for a declaratory judgment that it is the lawful owner of the subject property. Article 15 of the RPAPL governs action to compel the determination of a claim to real property. The court notes that, HSC's counterclaim does not technically comply with the pleading requirements set forth in RPAPL §1515(1), however, the defect is not fatal since the complaint sufficiently state a cause of action under RPAPL article 15 (see Howard v. Murray, 38 NY2d 695, 699-700 [1976].

HSC alleges in essence that it is the owners of record of the subject property and that the plaintiffs claim an estate or interest in the subject property adverse to HSC. HSC's documentary evidence demonstrates its purchase of the subject property from Satwiz, the prior owner of same. It shows Satwiz's recorded ownership and their conveyance of the fee interest to HSC. HSC's documentary evidence establishes it legal ownership in the subject property as against the plaintiffs and all defendants served with the pleadings of this action. Plaintiffs' opposition papers do not raise an issue of fact which impinges upon HSC's legal title to the subject property. HSC's motion for an accelerated judgment declaring it the lawful owner of the subject property is granted.

HSC also seeks to vacate the notice of pendency filed on the subject property. Plaintiffs' opposition papers are silent and do not directly address this branch of HSC's motion. Rather than granting the request on this basis, the court prefers to address the matter on the merits.

CPLR §6514 (a) pertains to a motion for cancellation of notice of pendency and provides in pertinent part as follows:

Motion for cancellation of notice of pendency. (a) Mandatory cancellation. The court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512; or if the action has been settled, discontinued or abated...

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J.S.C.