In this action defendant seeks summary judgment on his counterclaims, in essence finding in favor of the defendant on the issue of liability and dismissing the Complaint.

In opposition to the application counsel for plaintiff does not contest the merits of the application, but argues that it is procedurally barred. He claims that as the plaintiff never served a reply, defendant should have taken a default within one year and his failure to do so should result in abandonment of the counterclaims pursuant to CPLR § 3215(c).

In this action Jean QUARANTA is seeking monetary damages from her former boyfriend defendant SABINO RUTIGLIANO. In the Complaint the plaintiff alleges that in 1997 the defendant and his daughters moved into her house which she shared with her own daughter. Plaintiff alleges that the defendant fraudulently induced her to refinance her home on three separate occasions, November 1997, December 1998 and May 2001, taking the proceeds from these mortgages and using the money for himself and his daughters, instead of for repairs and renovations of the home as he allegedly promised. She seeks damages totaling $450,000.00.

In his Answer defendant claims that the plaintiff made him a co-owner of the property by deed dated November 14, 1997. He denies any fraud in the parties' decisions to take mortgages out on the premises. He asserts a single counterclaim. The defendant claims that the parties have originally known each other since they attended school in Italy in 1951. He states that they became reacquainted in 1995, and after his wife died, became romantically involved, resulting in him selling his home and moving his daughters and himself in with plaintiff and her daughters. Defendant contends that at the time, plaintiff was earning less than $25,000.00 per year and was behind in her property taxes. He claims that he was making more than $70,000.00 per year, and by moving in with her and putting his own monies toward the house and household, they were [*2]able to renovate and improve the home. The defendant claims that the house was put in both of their names and refinanced in order to pay for improvements as well as travel, plaintiff's daughters cars and weddings.

The defendant claims that his name was removed from the deed in 2002, although he still continued making the mortgage payments and contributing toward the house. He states that in November 2002 the couple broke off their relationship and he moved out in December 2002. In his counterclaim he claims he is entitled to an equitable lien on the property in the sum of approximately $50,000.00 representing monies he spent in improving the property. He seeks an Order dismissing the Complaint in the entirety and an Order awarding him attorneys fees. He also seeks an Order foreclosing on that lien.

Defendant's motion for summary judgment on the counterclaims is Denied.

Plaintiff's motion to dismiss the counterclaims as abandoned is also Denied.

Counsel for the defendant is not seeking a default judgment, but summary judgment on the evidence presented. There is no willful abandonment of the claims as they have been actively litigated by the parties. Finally, it is clear and undisputed from the evidence presented that the plaintiff's failure to serve

a timely Reply to the counterclaims was due to two changes in attorney by the plaintiff, and confusion whether a Reply had been served due to the changes in counsel. It[*3] is undisputed that the parties continued to exchange

discovery on these claims and they were actively pursued by the defendant without objection by plaintiff's former or current counsel. Grutman Katz, Greene & Humphry v. Goldman, NYLJ, June 11, 1996, (p.27, col.2)

While the Court agrees with defendant that this is not a case where defendant failed to properly take a default against the plaintiff in a timely fashion and is now time barred pursuant to CPLR § 3215(c), he does not find that the defendant has established that he is entitled to summary judgment as a matter of law pursuant to CPLR § 3212.

On the merits the motion must fail. As to the counterclaim wherein RUTIGLIANO seeks an equitable trust on the property and seeks a sale, he has not demonstrated that he is entitled to such relief.

In his Counterclaim, deposition, proof and opposition, RUTIGLIANO fails to set forth the necessary foundation for a constructive trust. In order to establish a constructive trust a plaintiff must establish (1) a confidential or fiduciary relationship; (2) a promise, expressed or implied; (3) a transfer made in reliance on such a promise; and (4) unjust enrichment. Sharp v. Kolmanski, 40 NY2d 119 (1976). Such a trust cannot be imposed when the part seeking to impose such trust does not have an interest in the property at issue and the other party did not make a promise to convey the property. Matter of Steibel, 227 AD2d 408 (2nd Dept. 1996). A plaintiff must still sufficiently plead the wrong by virtue of which the property should be made subject to a trust. See, Ruha v Guior, 277 AD2d 116 (1st Dept, 2000). Nowhere does RUTIGLIANO relate any specific allegations of wrongful conduct to the property upon which he seeks to impose an equitable trust.

The proof presented shows that some of the proceeds of the refinancing was used for his benefit and that of his own daughters, including college tuition payments.

The proof presented demonstrates that the counterclaim seeking an equitable trust is without merit and should be dismissed. Thus, the Court grants reverse summary judgment for [*4]QUARANTA on the counterclaim, which is stricken. CPLR § 3212(b).

Based on the proof presented, that portion of the motion seeking a dismissal of the Complaint is Granted.

The plaintiff has not set forth proof or evidence that the defendant fraudulently induced her to refinance the property. The fact that later the monies were not solely used for her benefit is not proof of fraud prior to the transaction. A review of all the proof reveals that the plaintiff has failed to comply with CPLR § 3016 which requires that where fraud is alleged, "the circumstances constituting the wrong shall be stated in detail." CPLR § 3013 provides that; "Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." A pleading must enable the court and the defendants to determine what activities the plaintiff complains of. Willis v Kepner, 109 AD2d 950 (3d Dept. 1985).

While a plaintiff is entitled to every possible favorable inference, the allegations contained within the four corners of the pleading must indicate the existence of a cause of action. Reifenstein v Allstate Ins. Co., 92 AD2d 715 (4th Dept. 1983). Ultimate facts, and not mere legal conclusions, must be pleaded so that an adversary can meet the claims advanced by the pleader. Morgenstern v Cohon, 2 NY2d 302, 308 (1956). A court cannot knowingly disregard a defective pleading which is prejudicial to an opposing party. DiMauro v Metropolitan Suburban Bus Authority, 105 AD2d 236, 240 (2d Dept. 1984).

In this instance, despite discovery having been completed, and both parties having been deposed, the plaintiff has still not provided any actual evidence of a false representation by the defendant. By plaintiff's own allegations, the monies were used to benefit all of the persons residing at the house, and that the defendant was the person who was repaying these loans and handling the household bills in the five years he lived at the premises. Based on the proof presented, the Court cannot find a factual basis for a claim of fraudulent inducement.

While summary judgment is a drastic remedy, it shall be granted, where, as here, there is no triable issue of fact in dispute. The mere conclusions and conjecture of the plaintiff does not create a[*5] bona fide triable issue. Smith v. Johnson Products, Inc., 95 AD2d 675 (1st Dept. 1983); Winkler v. Lombardi, 205 AD2d 757 (2nd Dept. 1994).

Based on the undisputed facts presented, that portion of the motion of the defendants for summary judgment dismissing the Complaint is Granted.

Thus based on all of the proof and arguments presented, both the Complaint and Counterclaim are stricken pursuant to CPLR § 3212. The matter is dismissed.

It is, SO ORDERED

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HON. GEOFFREY J. O'CONNELL, J.S.C.