By notice of motion filed on June 14, 2012, under motion sequence number seven defendant/counterclaim plaintiffs Stanley, Harriet, and Morris Berger (hereinafter the Berger defendants) move pursuant to CPLR 3212 for an order granting summary judgment dismissing plaintiff/counterclaim defendant Marilyn Berger's complaint (hereinafter the plaintiff), as well as summary judgment on their counterclaims as against her. Plaintiff opposes the motion.

BACKGROUND

All the parties in this action are related by blood or marriage. Plaintiff is the wife of defendant Morris Berger ("Morris") and the sister-in-law of defendant Stanley Berger [*2]("Stanley"), Morris' brother. Defendant Harriet Berger ("Harriet") is Stanley's wife. On November 25, 2008, plaintiff commenced this instant action by filing a summons, complaint and a notice of pendency with the Kings County Clerk's office. The Berger defendants joined issue by their verified answer dated January 23, 2009. On February 17, 2009, plaintiff filed an amended verified complaint. On December 2, 2011, the Berger defendants filed their second verified amended answer with counterclaims.

Plaintiff's amended verified complaint alleges seventy six allegations of fact in support of six causes of action. The first cause of action seeks to compel a determination of plaintiff's claim of interest in real property pursuant to Article 15 of the RPAPL. The real property in question is located at 1049 56th Street, Brooklyn, New York ("the subject property"). The second cause of action seeks the imposition of a constructive trust over plaintiff's interest in the subject property. The third cause of action is premised on a claim that the Berger defendants' defrauded the plaintiff. The fourth cause of action is denominated as constructive fraud. The fifth cause of action is for unjust enrichment. The sixth and final cause of action seeks promissory and equitable estoppel.

The Berger defendants' verified amended answer pleads seven affirmative defenses and four counterclaims. The Berger defendants' counterclaims seek to compel a determination that defendant Stanley Berger is the sole owner of the subject property pursuant to Article 15 of the RPAPL, for unpaid rent, unjust enrichment, and for an accounting. The counterclaim for unjust enrichment was withdrawn at the oral argument of the motion.

MOTION PAPERS

The Berger defendants' motion papers consist of an attorney affirmation, the affirmations of Stanley, Morris, and Harriet, and twenty-two exhibits labeled A through W, and a memorandum of law. Exhibit A is the summons with notice of instant action, verified complaint and notice of pendency. Exhibit B contains the verified answer with counterclaims. Exhibit C is the amended verified complaint. Exhibit D consists of the verified amended answer with counterclaims. Exhibit E is the verified reply to the counterclaims. Exhibit F contains a decision and Order of this Court dated March 28, 2010. Exhibit G contains the transcript of the plaintiff's deposition which was held on September 14, 2011. Exhibit H is the second verified amended answer with counterclaims. Exhibit I contains plaintiff's verified reply to the counterclaims contained in second verified amended answer. Exhibit J is a copy of the note of issue and print out of the Kings County clerk's minutes. Exhibit K is a short form order dated June 8, 2012. Exhibit L is a copy of the deed to the property between Francesco N. Mormando and Carmella F. Mormando of the first part and Stanley H. Berger as the second part, dated January 22, 1986. Exhibit M contains a lease agreement dated November 20, 2005 between Stanley Berger and Rabbi and Mrs. Moshe Berger signed by Moshe Berger. Exhibit N is a note and mortgage pertaining to the subject property between Fairmont Funding and Stanley H. Berger, signed by Harriet Berger, as his attorney in fact, with [*3]what appears to be several assignments. Exhibit O is an undated document described as a "closing statement" which is signed by Joseph A. Schubin. Exhibit P contains unsigned 1040 IRS tax forms for 2006 and 2007 which allegedly were filed by Stanley and Harriet Berger which lists a one family house in Borough Park as an asset. Exhibit Q is a Consolidation, Extension, and Modification Agreement dated January 9, 1992 between Stanley Berger and Fairmont Funding for the subject property, signed by Stanley H. Berger. Exhibit R is a document dated March 28, 2003, addressed to Stanley H. Berger from Wells Fargo Home Mortgage that appears to confirm the mortgage pay off. Exhibit S is an unsigned letter dated October 28, 2011, that appears to be from Marilyn Berger to the Law Office of Sheldon Eisenberger. Exhibit T contains a Lease Agreement between Stanley H. Berger and Moshe and Marilyn Berger dated January 7, 2008, which appears to be signed by both Marilyn and Moshe Berger. Exhibit U contains an unsigned copy of a 1986 Tax Form 1040, described as Moshe and Marilyn Berger's tax form. Exhibit V is Berger defendants' first request for the production of documents dated April 14, 2011. Exhibit W is a Subpoena Duces Tecum allegedly served on Mr. Milton Gutman by the Berger defendants dated December 15, 2011 and a responsive letter, without the enclosures that the letter references.

Plaintiff's opposition papers consist of her affirmation and seven annexed exhibits labeled A through G. Exhibit A is an affirmation of plaintiff's brother, Moishe Mishkowitz. Exhibit B is plaintiff's response to defendant's first request for the production of documents including a purported transcription of a conversation between Moishe Mishkowitz and defendant Stanley Berger. Exhibit C is a document that is labeled as an "advice of debt." Exhibit D is an Order of Protection issued by the Hon. Jacqueline D. Williams, prohibiting Morris Berger from being in a certain proximity to Marilyn Berger and his daughter, as well as prohibiting him from engaging in certain activities. Exhibit E appears to be a lease agreement between Stanley Berger and Moishe and Marilyn Berger beginning in 2008 for a term of two years signed by Marilyn and Morris Berger. Marilyn alleges that her signature is forged on this lease agreement. This is the same lease agreement that is annexed to Berger defendants' papers as Exhibit T. Exhibit F is a document described as a "closing statement," it is the same document as Berger defendants' Exhibit O. Exhibit G is a copy of the front of an envelope that is addressed to Mr. and Mrs. Moshe Berger from Jacob F. Suslovich and an unlabeled paper that contains columns of figures from the years 1986-1988.

Berger defendants reply papers consist of affirmations of Morris and Stanley Berger as well as five exhibits labeled A through E. Exhibit A is the Amended Verified Complaint dated February 11, 2009. Exhibit B is the Affirmation in Opposition of Marilyn Berger dated May 13, 2009. Exhibit C is the Affirmation of Moishe Mishkowitz dated May 13, 2009. Exhibit D is a Decision and Order dated March 28, 2010, by the Hon. Francois Rivera. Exhibit E is a letter and documentation from the New York City Housing Authority dated February 23, 2004, addressed to Moshe Berger regarding [*4]Housing Authority Vouchers and Payment Change notification, apparently signed by Stanley Berger as well as direct deposit stubs of payments to Stanley Berger from the New York City Housing Authority.

LAW AND APPLICATION

A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept 2005]. "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547 [2nd Dept 1995]). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Napolitano v Suffolk County Dept. Of Public Works, 65 AD3d 676 [2nd Dept 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated For Manufacturers, Inc., 46 NY2d 1065). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions(Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

Defendant's Prior Motion for Summary Judgment

Berger defendants previously moved for the same relief by motion dated April 28, 2009 and this Court denied that application by order dated March 28, 2010 (the Prior Order). Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" Coccia v Liotti, 2012 WL 6028893 [2d Dept 2012]. While the instant motion seeks the identical relief the prohibition against successive summary judgment motions is not violated as the plaintiff's deposition was held in the interim.

The Prior Order found that the Berger defendants had sufficiently met their burden of proof under Article 15 of the RPAPL and that Stanley Berger is the sole owner of the subject property. However, issues of fact remained regarding the other causes of action. In opposition to the prior motion the plaintiff had submitted an identical transcribed conversation between plaintiff's brother and Stanley Berger. The Court held that the transcription was not in admissible form as the transcription was not certified by the stenographer. The contents of the conversation could have been introduced by plaintiff's brother as party admissions. [*5]Defendants' Instant Motion for Summary Judgement dismissing the Complaint

The Berger defendants seek summary judgment dismissing the plaintiff's four remaining causes of action. The first remaining cause of action is for an imposition of a constructive trust. If the court finds: (1) a confidential relationship; (2) a promise, express or implied; (3) a transfer made in reliance upon such promise; and (4) resulting unjust enrichment then a constructive trust may be imposed (see, Aboulessan v Aboulessan, 9 Misc 3d 1124(A), citing Sharp v Kosmalski, 40 NY2d 119 at 121 [1976] and Modica v Modica, 15 AD3d 635 [2nd Dept 2005]).

The second is for fraud. The elements of a fraud are that (1) the defendant made a false representation of fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff's reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance (Pace III v Raisman & Assoc., 95 AD3d 1185 [2nd Dept 2012]).

The third is for constructive fraud. In order to established constructive fraud a representation must have been made which dealt with a material fact. The representation was false and the representation was made with intent to make the other party rely upon it and the other party did rely on the representation without knowledge of falsity. An injury resulted from the reliance. The parties must have been in a fiduciary or confidential relationship. Plaintiff need not prove that the defendant had actual knowledge of the falsity of the representation (Del Vecchio v Nasaua County, 118 AD2d 615 [2nd Dept 1986]).

Last, is promissory estoppel. To establish viable cause of action sounding in promissory estoppel, plaintiff must allege a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and injury sustained in reliance on promise (Rogers v Town of Islip, 230 AD2d 727 [2nd Dept]). The purpose of equitable estoppel is to preclude a person from asserting a right when he or she has led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted (Id.)

In order for the Berger defendants to meet their prima facie entitlement to summary judgment dismissing the complaint they must establish that there are no genuine issues of material fact that would require a trial (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]). In support of their motion the Berger defendants submit affirmations that establish prima facie that they made no promise to Marilyn regarding the property. Berger defendants also establish through their affirmations that Marilyn did not make a transfer or other wise rely on any promise.

All three Berger defendants assert that the property was purchased by Stanley Berger as an investment property and that he permitted Marilyn and Morris to reside in the premises as tenants. Each defendant asserts that Marilyn was never promised anything regarding the ownership of the house or a promise that the property was being held in her stead. Stanley Berger asserts that he solely provided the down payment for the [*6]house and applied for the financing. Morris Berger denies contributing any money to the purchase of the house. Morris Berger further states that he and plaintiff lacked the ability to contribute to the down payment of the property in 1986, the year it was purchased.

Berger defendants also submit the deposition transcript of Marilyn Berger in support of the motion. Plaintiff admits in her deposition that she never spoke with Stanley or Harriet Berger regarding the property. However, she states that she did speak with her husband and that he promised her that the property would be in his brothers name but in actuality it belonged to them and Stanley was helping them by holding the property in his name. While the deposition transcript evidences that a promise may have been made by Morris to Marilyn regarding the funds and the property, Marilyn could not testify as to any transfer or reliance on that promise. Marilyn was unable to testify with certainty as to any transfers she believed occurred. Therefore, even if a promise was made to her by Morris, the essential element of a transfer or reliance thereon, necessary for of all four causes of action is missing.

Consequently, the Berger defendants have met their prima facie burden on a summary judgment motion and now the plaintiff must raise a triable issue of fact.Plaintiff opposes the motion mostly based on her affirmation and the affirmation of her brother Moishe Mishkowitz. Plaintiff's affirmation fails to raise a triable issue of material fact. Her affirmation simply bolsters the Berger defendants' arguments that no promise was made to her by either Harriet or Stanley and that only Morris would have possibly promised her something in regards to the subject property. Her statement that she is "certain that my entire life savings was used in purchasing the subject premises" is conclusory and self serving.

The affirmation of Moishe Mishkowitz fails to remedy the prior deficiencies and the transcription remains inadmissible. Assuming arguendo that the transcription was admissible, it too fails to raise a genuine issue of fact. The conversation between Mishkowitz and Stanley Berger fails to establish that there was a promise made nor a transfer made in reliance thereof. Mishkowitz's affirmation states that Stanley Berger was confused as to the down payment amount, that he bought the house to help Morris and Marilyn qualify for government assistance programs and that Stanley asserted he could transfer the house whenever he felt appropriate to do so. These assertions do not raise a genuine issue of material fact as to the defeat the instant motion.

Therefore, that portion of Berger defendants' summary judgment motion which sought dismissal of the complaint is granted.

Defendants' Instant Motion of Summary Judgement on Counterclaim as against Plaintiff

The remaining portion of Berger defendants' motion seeks summary judgment on the counterclaims of unpaid rent and for an accounting. In support of this application the Berger defendants submit a lease purportedly signed by Marilyn and Moshe Berger for a two year term which began on February 1, 2008 and ended on January 31, 2010. The rent [*7]provided for in the lease is $911.25. Stanley also provides Section 8 rent subsidy payments for some months in 2008 and 2009 in the amount of $710.25 per month.

Stanley alleges that no monies have been received or accepted for the period after August 1, 2010. However, he doesn't state whether the New York City Housing Authority has ceased to remit Section 8 subsidy payments. Morris allegedly surrendered possession of the property to Stanley on or about August 10, 2010. There are issues of fact as to whether Stanley has been receiving Section 8 subsidy payments for the period of August of 2010 to the present. As Stanley has only submitted partial records of Section 8 receipts and does not specify the amount due to him the prima facie burden has not been met. Furthermore, the Berger defendants cite to no law that provides for the relief requested.

Furthermore, as to the counterclaim for an accounting, the Berger defendants only sought an accounting if the Court determined that plaintiff had an ownership interest in the property. As the Court determined that plaintiff has no ownership interest in the property the cause of action does not lie on the relief granted. Therefore, the counterclaims of unpaid rent and for an accounting remain.

Accordingly, the Berger defendants' motion for summary judgment dismissing the complaint is granted. The Berger defendants' motion for summary judgment on the counterclaims as against the plaintiff are denied.

The foregoing constitutes the decision and order of this Court.

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