By Order to Show Cause, dated March 2, 2007, plaintiff in this action seeks an order granting a temporary restraining order against the defendant, enjoining and prohibiting him from commencing any summary proceedings in the Civil Court to evict plaintiff from the premises at 2148 East 72nd Street, Brooklyn, New York; and granting a temporary injunction and/or a stay of summary proceedings pending in the related Kings County Civil Court action, Burton Kaplan v Anthony Casso Jr., Index No. 106850/06. [*2]By Notice of Cross-Motion, dated April 11, 2007, defendant seeks an order dismissing the complaint on the grounds that a defense is founded upon documentary evidence and the pleadings fail to state a cause of action, pursuant to CPLR 3211 (a) (1) and (a) (7), respectively.^[FN1]

At the heart of this matter is a dispute between the parties regarding title to the premises located at 2148 East 72nd Street, Brooklyn, New York. The plaintiff, Anthony Casso (Casso), and his family currently reside at the premises. The deed to the property, however, is in the name of the defendant, Kaplan, and has been in Kaplan's name since 1985.

What is in dispute is how and why the title to the property came to be in Kaplan's name, and when the plaintiff and his deceased mother, Lillian Casso, became aware of that fact. The dispute arises from the past relationship and criminal association of defendant, Burton Kaplan (Kaplan), and plaintiff's father, Anthony Casso Sr. (Casso Sr.).

By deed dated October 18, 1973, the plaintiff's paternal grandmother, Margaret Casso obtained title to the subject property located at 2148 East 72nd Street. At some point Lillian Casso married Margaret Casso's son, Anthony Casso Sr. By deed dated July 29, 1977, Margaret Casso transferred title to herself and her daughter-in-law, Lillian Casso, as joint tenants with rights of survivorship. By deed dated April 19, 1985, title to the property was transferred from Margaret Casso and Lillian Casso to Burton Kaplan.

On or about December 4, 2006, Kaplan commenced the related Civil Court action, seeking to evict Casso and his family from the premises. In response, Casso thereafter commenced this action, putting forth a number of claims arising out of the transfer of the premises to Burton Kaplan.

Plaintiff contends that Anthony Casso Sr and Kaplan, as part of a money laundering scheme and ongoing criminal association, induced Lillian Casso to transfer title to Kaplan. Plaintiff contends that the signature of Margaret Casso was forged, and that Kaplan represented to Lillian Casso that he was holding the premises "in trust" for her, and that he would reconvey the premises to her at the appropriate time.Plaintiff further contends that at some point after Kaplan became incarcerated in October 1995, Lillian Casso visited Kaplan for the purpose of asking him to reconvey the premises to her and that Kaplan refused to do so.

Lillian Casso died on February 28, 2005. Her son, the plaintiff, continued to reside at the premises with his family. Plaintiff pays all taxes, carrying charges and other expenses for the premises.

Preliminarily, the Court's role on a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211 (a) (7), "is limited to determining whether a cause of action is stated within the four corners of the complaint" (Franklin v DaimlerChrysler Corp., 292 AD2d 118 [2002]). In opposing such a motion, a plaintiff is under no obligation to demonstrate that evidence exists to support the allegations (Stuart Realty v Rye Country Store, Inc., 296 AD2d 455 [2002]). "The complaint must be construed in a light most favorable to the plaintiff and all factual allegations must be accepted as true," with the only issue being whether the factual allegations "manifest a cause of action cognizable at law" (Gruen v County of Suffolk, 187 AD2d 560 [1992]; Weiner v Lenox Hill Hospital, 193 AD2d 380 [1993]).

Further, although the facts alleged are presumed to be true and accorded every favorable inference, allegations which consist of bare legal conclusions, which are inherently incredible, or which are flatly contradicted by documentary evidence are not entitled to such consideration (Wilson v Hochberg, 245 AD2d 116 [1997]; WFB Telecommunications, Inc. v Nynex Corp., 188 AD2d 527 [1992]).

A motion to dismiss based upon documentary evidence, pursuant to CPLR (a) (1), should only be granted where the documentary evidence submitted "conclusively establishes a defense to the asserted claims as a matter of law" (511 W. 232nd Owners Corp. v Jennifer Realty Co. (98 NY2d 144 [2002]). The defendant seeking dismissal must demonstrate that the documentary evidence "resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Berger v T emple Beth-El of Great Neck, 303 AD2d 346 [2003]; New York Schools Ins. Reciprocal v Gugliotti Assocs., 305 AD2d 563 [2003]; Gephardt v Morgan Guaranty Trust Co. of New York, 191 AD2d 229 [1993]).

Although not specifically delineated as such, defendant's cross-motion also seeks dismissal on the grounds of statute of limitations, pursuant to CPLR 3211 (a) (5), and the doctrine of laches.

Plaintiff's Claim for Tortious Interference with Prospective Economic Advantage

"To establish a claim for tortious interference with prospective economic advantage, a plaintiff must demonstrate that a defendant's interference with its prospective business relations was accomplished by wrongful means or that the defendant acted for the sole purpose of harming the plaintiff" (Caprer v Nussbaum, 36 AD3d 176, 204 [2006][internal quotation marks omitted]; Snyder v Sony Music Entertainment, Inc., 252 AD2d 294, 299-300 [1999]; Burba v Rochester Gas and Elec. Corp., 139 AD2d 939, 940 [1988]). In this action, plaintiff has failed to allege that the transaction between the parties for the conveyance of 2148 East 72nd Street was part of any business relationship between the parties. Indeed, plaintiff has alleged that the conveyance of the property was part of a criminal enterprise and money laundering scheme between Casso Sr. and Kaplan. Plaintiff has also failed to allege that defendant interfered with any prospective business relationship between plaintiff and a third-party. [*4]

Moreover, plaintiff has failed to allege that any interference on the part of defendant was accomplished by wrongful means. Even if there were a legitimate promise to reconvey the property at some point in time, plaintiff has not made any allegation that defendant's repudiation of that promise was, at that time, anything more than a possible breech of contract, as opposed to an interference by "wrongful means" as contemplated by the caselaw (see e.g. Murray v SYSCO Corp., 273 AD2d 760 [2000][wrongful means includes fraud, misrepresentation and threats to terminate employment]; Home Town Muffler Inc. v Cole Muffler Inc., 202 AD2d 764 [1994][wrongful means includes physical violence, fraud, misrepresentation, civil suits, criminal prosecution or some degree of economic pressure other than mere persuasion]). Accordingly, defendant's motion to dismiss plaintiff's claim for tortious interference with prospective economic advantage is granted.

Plaintiff's Claim for Breach of A Fiduciary Duty

Plaintiff's claim for breach of a fiduciary duty also fails for lack of allegations to support a cause of action. A necessary element of such claim is the existence of a fiduciary relationship. A fiduciary relationship exists when one party "reposes confidence in another and relies on the other's superior expertise or knowledge" (Black Car and Livery Ins., Inc. v H&W Brokerage, Inc., 10 Misc 3d 1075 [A] [2006]; WIT Holding Corp. v Klein, 282 AD2d 527, 529 [2001]). In this action, whether the transaction between plaintiff and defendant was part of a criminal enterprise and money laundering scheme or whether it was a legitimate arm's length real estate transaction, it cannot be said that plaintiff and defendant shared a fiduciary relationship.

Plaintiff's Claim for Unjust Enrichment

Plaintiff's claim for unjust enrichment fails by reason of the statute of limitations. A claim to recover damages for unjust enrichment is governed by the six-year statute of limitations provided under CPLR 213 (Frank Mgt Inc. v Weber, 145 Misc 2d 995 [1989]; German v Pope John Paul II, 211 AD2d 456 [1995]; Congregation Yetev Lev D'Satmar v 26 Adar N.B. Corp., 192 AD2d 501 [1993]). Giving plaintiff every favorable inference, the court finds that the latest date that plaintiff could have discovered the wrongful act which would have given rise to a duty of restitution was in 1993, when Lillian Casso signed the lease with Kaplan. Although the affidavit of Casso Sr. states that Lillian Casso never knew in her lifetime that Kaplan held title to the property, the court finds such allegation inherently incredible. Even if Lillian Casso was not aware that she transferred title to Kaplan in 1985, she certainly must have become aware that Kaplan held title in 1993, when she signed a lease for the property. Indeed, plaintiff has alleged, contrary to the affidavit of Casso Sr., that it was at that time that Kaplan promised to reconvey the property to Lillian Casso at some undetermined point in the future. Thus, accepting the allegation of a promise to reconvey as true, it was at that point that the clock started ticking. That Lillian Casso failed to ask for a reconveyance of the property in 1993, the latest date that she could have discovered Kaplan held title, is fatal to claim. That she failed to do so because her husband was attempting to avoid seizure of the property, as [*5]plaintiff alleges, does not toll the statute of limitations.

Plaintiff's Claim for Fraud and Fraud in the Inducement

Plaintiff's claims for fraud and fraud in the inducement are also barred by the statute of limitations. The statute of limitations for both fraud and fraud in the inducement is the later of six years from the date the cause of action accrued or two years from the time it was discovered, or could have been discovered with reasonable diligence (CPLR 213 [8]; accord Modin Assocs., Inc. v City of New York, 136 AD2d 530 [1988]). The fraud complained of in this action occurred in 1985, for which the six year statute of limitations would have expired in 1991. Applying the discovery rule, the statute of limitations would have expired in 1995, two years after Lillian Casso signed the lease in 1993.

Furthermore, the essential elements of a claim for fraud are a misrepresentation of a material fact, falsity, scienter, and reliance (see e.g. Kaufman v Cohen, 307 AD2d 113, 119 [2003]). To survive a motion to dismiss, the complaint must make factual allegations sufficient to support each element of a cause of action for fraud (see e.g. Pichard v 164 Ludlow Corp., 14 Misc 3d 1201 [A] [2006]). Although plaintiff alleges that Kaplan represented to Lillian Casso that he would hold the property in trust for her, and reconvey it upon her request, it is "well settled that a cause of action for fraud does not arise where the only fraud alleged merely relates to a party's alleged intent to breach a contractual obligation" (767 Third Ave LLC v Greble & Finger, LLP, 8 AD3d 75, 76 [2004]). Even accepting plaintiff's allegations at true, had Kaplan promised to reconvey title and then later reneged on that promise, such allegations amount to nothing more than an intent not perform and cannot sustain an action for fraud (see also Berger v Roosevelt Inv. Group, LLC, 28 AD3d 345 [2006]; Williams v Coppola, 23 AD3d 1012 [2005]). Moreover, plaintiff has also failed to allege any action undertaken on the part of Lillian Casso in reliance on the alleged promise.

In regards to plaintiff's claim for fraud in the inducement, plaintiff has failed to allege any facts sufficient to establish justifiable reliance. In determining the existence of justifiable reliance, the court is to consider "whether the person making the representation held or appeared to hold a unique or special expertise; whether a special relationship of trust or confidence existed between the parties; and whether the speaker was aware of the use to which the information would be put and supplied it for that purpose" (Kimmell v Schaefer, 89 NY2d 257 [1996]). Aside from the conclusory statement that Lillian Casso's reliance was "justifiable under the circumstances," plaintiff has not alleged any facts to suggest that there was a relationship of trust or confidence between Kaplan and Lillian Casso or any facts to suggest exactly why any alleged reliance on the part of Lillian Casso was justified. The only relationship alleged by plaintiffs is the criminal relationship between Kaplan and Lillian Casso's husband, Casso Sr.

Plaintiff's Claim for the Imposition of a Constructive Trust

Plaintiff's claim for the imposition of a constructive trust is likewise barred by the statute of limitations. An action to impose a constructive trust is governed by a six year [*6]statue of limitations (CPLR 213). The running of the statute of limitations depends on whether the property was acquired wrongfully, in which case the statute of limitations runs form the acquisition, or whether the property was acquired lawfully but then withheld from the proposed beneficiary, in which case the statute of limitations runs from the date the proposed trustee repudiates the agreement to transfer the property (Jakacic v Jakacic, 279 AD2d 551 [2001]). In the present action, plaintiff alleges only that defendant acquired the property wrongly. As such, the statute of limitations accordingly ran from the date the property was wrongfully acquired in 1985, and expired in 1991.

Furthermore, plaintiff has failed to allege the elements required for the imposition of a constructive trust. The essential elements required for the imposition of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance of the promise, and unjust enrichment (see Doria v Masucci, 230 AD2d 764 [1996]; Weiss v Weiss, 186 AD2d 247 [1992]; Simonds v Simonds, 45 NY2d 233 [1978]; Sharp v Kosmalski, 40 NY2d 119 [1976]). As discussed above, plaintiff does not allege any facts to suggest that a fiduciary relationship existed at anytime between the parties. The only allegations plaintiff makes, in regards to a relationship between the parties, is that Kaplan and Casso Sr maintained a criminal relationship.Plaintiff has also failed, as discussed above, to demonstrate the element of unjust enrichment. Defendant has presented documentary evidence, in the form of a deed, mortgage, closing statement, and a satisfaction of the mortgage, that some fair consideration was paid for the property, and plaintiff has, by admission, continued to enjoy use of the property rent free for a number of years.

Plaintiff's Claim under the Donnelly Act

Plaintiff's claim under the Donnelly Act (General Business Law § 340) was withdrawn at oral argument.

Plaintiff's Claim under the Doctrine of Adverse Possession

A party seeking to obtain title under the doctrine of adverse possession must satisfy the common-law elements that the possession be hostile, under a claim of right, actual, open and notorious, exclusive, and continuous for the statutory period of ten years (see e.g. Beyer v Patierno, 29 AD3d 613 [2006]; Trimboli v Irwin, 11 Misc 3d 1058 [A] [2006]; McNeil v Konefsky, 8 Misc 3d 1015 [A] [2005]). Defendant in this action has presented a copy of a lease signed by Lillian Casso in 1993. The signed lease vitiates any claim that plaintiff's possession was hostile or under a claim of right. Any "awareness that others own the property upon entry on the property or within the 10-year statutory period will defeat any claim of right" (Beyer v Pateirno, 29 AD2d at 615). Where possession "is by permission, it is presumed to continue until the contrary appears" (Trimboli v Irwin, 11 Misc 3d at 1058).

Furthermore, where a claim for adverse possession arises out of a landlord-tenant relationship, the possession of the tenant is deemed the possession of the landlord until the expiration of ten years after the termination of the tenancy (RPAPL § 531). By its own terms, the lease submitted by defendant would have expired on April 30, 1998, and [*7]thus any claim for adverse possession arising out of the landlord-tenant relationship has not yet ripened (see e.g. McNeil v Konefsky, 8 Misc 3d at 1015; Gallea v Hess Realty Corp., 128 AD2d 274 [1987] [both cases holding that a claim for adverse possession brought by a tenant against a landlord would not ripen for twenty years after the expiration of a written lease, if one existed, or the last payment of rent, if the lease was oral).

The Doctrine of Laches

The court also finds plaintiffs claims to be barred by the doctrine of laches. All of plaintiff's causes of action arise out of the transfer of the premises to Kaplan on April 19, 1985. Although plaintiff contends that Lillian Casso was induced to transfer title to the property without her knowledge, plaintiff does not contend that Lillian Casso did not transfer title to the property or that she was not part of that transaction, so the date of that transaction in April 1985 is the earliest point that plaintiff could have conceivably become aware of the transfer. The absolute latest that plaintiff could have become aware of the transfer, and the title being in defendant's name, was 1993, when she signed a lease for the premises and when it is alleged that defendant promised to reconvey the premises to her at some point in the future. Moreover, assuming that defendant actually had a binding and legal obligation to reconvey the premises, plaintiff would have become aware of defendant's refusal to reconvey the premises absolutely no later then when she visited him in prison for the purpose of seeking a reconveyance. Although no date is given in the pleadings for that jailhouse meeting, that date would necessarily have been between when defendant was incarcerated in September 1996 and when Lillian Casso passed away in February 2005, two years prior to the commencement of the instant action.

Having waited a minimum of two years to commence this action, it appears that the only impetus for plaintiff commencing this action was defendant's summary holdover proceeding commenced in the Civil Court. Even being undisputably aware of title existing in defendant's name and defendant's repudiation of any request to reconvey title, it seems plaintiffs were content to maintain the status quo. Furthermore, whether it was Casso Sr. conveying title in 1985 as part of a money laundering scheme or Lillian Casso executing a lease in 1993 to avoid forfeiture of the property, it seems that the Casso's were content to let Kaplan hold title in his name as it suited there needs. Finally, the court must also note that Lillian Casso and Margaret Casso are now deceased, and unavailable to testify.

Laches is not merely a delay in enforcing one's rights, but a delay that works an inequitable disadvantage to another (Augustine v Szwed, 77 AD2d 298 [1980]). In this action, it is clear that Lillian Casso was aware that Kaplan held title to her home since no later than 1993, and that he was repudiating any alleged agreement to reconvey the premises no later than 2005. The foregoing notwithstanding, it was not until March of 2007 that plaintiffs commenced the instant action in response to Kaplan's bringing the civil court action; twenty-two years after Kaplan first obtained title, fourteen years after the latest that Lillian Casso could have become aware Kaplan held title, and at the [*8]absolute least two years after Kaplan allegedly refused to reconvey title.

Plaintiff's Claim for a Preliminary Injunction

In regards to a claim for a preliminary injunction, a plaintiff is required to show a probability of success on the merits, danger of irreparable injury, and a balance of the equities in his favor (Aetna, Ins. Co. v Capasso, 75 NY2d 860 [1990]). As plaintiff cannot demonstrate a likelihood of success on the merits as to the above causes of action, plaintiff's cause of action for a preliminary injunction must also be dismissed (see e.g. Finegan Family, LLC v 77 Horatio Street Condominium, 38 AD3d 365 [2007]; AMC Corp. v Advance Computer Mgt., 295 AD2d 109 [2002]; Gold v Hui-Yin Huang, 285 AD2d 580 [2001]).

To the extent that plaintiff's application for a temporary restraining order was not granted pending the resolution of defendant's cross-motion to dismiss, plaintiff's Order to

Show Cause is otherwise denied in accordance with the above discussion.

This constitutes the Decision, Opinion and Order of this Court.

Dated: August 24, 2007

ENTER,

_________________________

Ira B. Harkavy

J.S.C.