Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by the defendant, dated November 19, 2012, and supporting papers (including Memorandum of Law received November 30, 2012); (2) Affidavit in Opposition by the plaintiff, dated December 5, 2012, and supporting papers; (3) Other(and after hearing counsels' oral arguments in support of and opposed to the motion); and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

The attorney for defendant moves for renewal of his previous motion to dismiss on the ground that, although filed by defendant, opposed by plaintiff, and supplemented with additional replies by both parties, the motion was never calendared for submission nor resolved by the court. Accordingly, he requests that the motion be renewed so that the court can resolve the issues originally submitted but never determined. Plaintiff opposes the within motion claiming that the original motion to dismiss was never filed and that defendant's time to seek a dismissal has expired. CPLR 2001 permits the court to correct "a mistake, omission, defect or irregularity, including . . . [a] mistake in the filing process . . . upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded". Here, where the Court's internal records and notes reflect that the motion was "in system" and that "[defendant's] affirmation, deft's motion to dismiss and deft's memo of law recv'd [and that] papers were put with related case #35301/09 [Suissa v Baron]", it is clear that the error in filing was not on the part of the movant but by the court. As plaintiff fully responded to and opposed the motion to dismiss, no prejudice to her will occur by the correction of the mistake in submitting the motion at this time. Accordingly, the motion to renew defendant's prior "unsubmitted" motion is granted and the court will now address the motion by defendant for dismissal pursuant to CPLR 3211 (a) (1), (3), (5), and (7).

Plaintiff commenced this action in or about May 2009 by the filing of a 355 paragraph complaint alleging twenty-four causes of action, following the March 11, 2009 order of the Hon. Donald R. Blydenburgh, J.S.C. (Baron v Suissa, Sup Ct, Suffolk County, March 11, 2009, Blydenburgh, J. Index No. 25926/08 affirmed 74 AD3d 1108, 906 NYS2d 50 [2d Dept 2010]) which dismissed nine of plaintiff's twenty-nine causes of action against the same defendant, with prejudice, and dismissed the remaining causes of action without prejudice to renew in a proper forum (the first action having been brought in a dedicated matrimonial part and no common law or other marriage between the parties having been found to have occurred)^[FN1] . The defendant moves for an order dismissing the complaint on the grounds that there is a defense based upon documentary evidence pursuant to CPLR 3211 (a) (1), that plaintiff has no legal capacity to sue pursuant to CPLR 3211 (a) (3), that the causes of action are barred by the statute of frauds and equitable estoppel pursuant to CPLR 3211 (a) (5), and that the pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7).

There is no question that the parties met in or around 1992 while each of them was married to other persons, that they began to reside together in or about July 1997, that defendant was divorced from his wife in or about 1995, that plaintiff was divorced from her husband in or about February 2002 (although the equitable distribution portion of her divorce was not [*3]completed until approximately 2011), and that defendant purchased a house known as 62A Twin Hills Court, Northport, New York ("the 62A Twin Hills property") in July 1999. Plaintiff and her son resided in the 62A Twin Hills property after its purchase through and until November 2010, although the parties had separated when defendant moved out of the premises in or about 2008. Plaintiff sought to assert an interest in the 62A Twin Hills property in a matrimonial proceeding where she alleged that the parties were married by common law and that she was entitled to her equitable share of the parties' assets. However, after a decision by the Hon. Donald R. Blydenburgh, J.S.C. (Baron v Suissa, supra), determining that no marriage existed, she commenced the within action alleging, inter alia, that she is an owner of the 62A Twin Hills property through a constructive trust. Thereafter, defendant served notice on April 8, 2009 in a summary proceeding in District Court pursuant to RPAPL 713 (7) seeking to dispossess her from the 62A Twin Hills property. Plaintiff raised an affirmative defense in that action, claiming that she was entitled to the impressment of a constructive trust upon the property.

Although District Court Judge C. Stephen Hackeling issued a decision after trial dismissing the petition of defendant in that summary proceeding, finding that plaintiff had established the requirements of a constructive trust (Suissa v Baron, 24 Misc 3d 1236 [A], 901 NYS2d 903 [2009]), the final judgment was subsequently entered erroneously and awarded possession to defendant. Thus, the appeal and cross appeal from Judge Hackeling's decision after trial were dismissed, the court determining that "no appeal lies from a decision" (Suissa v Baron, App Term, Sup Ct, 9th and 10th Districts, December 22, 2010, Kenny, Chief Clerk, docket No. 2009-1589 SC). Here, plaintiff maintains that the decision of Judge Hackeling collaterally estops defendant from his claim that no constructive trust was established, since the determination was made after a trial in the district court on the very same issue. However, "[a] decision upon which no formal order or judgment has been entered lacks the conclusive character necessary to invoke the doctrine of collateral estoppel" (Egbert Square Realty, LLC v 112-114 Corp., 93 AD3d 687, 687, 940 NYS2d 291 [2d Dept 2012]), a decision not reduced to a judgment will not suffice to invoke the doctrine of collateral estoppel, as a final judgment is necessary to competently and conclusively resolve the matter (Rudd v Cornell, 171 NY 114 [1902]; Towne v Asadourian, 277 AD2d 800, 722 NYS2d 187 [3d Dept 2000]; Begelman v Begelman, 170 AD2d 562, 566 NYS2d 337 [2d Dept 1991]; Huntington Medical Plaza P.C. v Travelers Indem. Co., 43 Misc 3d 129[A], 2014 NY Slip Op 50527[U],*[App Term, 2d Dept, 2014]). Thus, this court is not bound by the decision of Judge Hackeling which was never reduced to a judgment, and may make its own determination on the merits with regard to the allegations insofar as they relate to the existence of a constructive trust.

The court may grant a motion to dismiss pursuant to CPLR 3211 (a) (1) "only where the documentary evidence utterly refutes plaintiff's allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 746 NYS2d 858 [2002]; Sobel v Ansanelli, 98 AD3d 1020, 951 NYS2d 533 [2d Dept 2012]; Harris v Barbera, 96 AD3d 904, 947 NYS2d 548 [2d Dept 2012]). In order to qualify as "documentary evidence" the printed materials "must be unambiguous and of undisputed authenticity . . . [and] affidavits and deposition testimony are not documentary evidence' within the intendment of a CPLR 3211 [*4](a) (1) motion to dismiss" (Fontanetta v John Doe 1, 73 AD3d 78, 86, 898 NYS2d 569 [2d Dept 2010]). Generally, printed materials such as letters and e-mails are not considered "undeniable" or out-of-court transactions which are equivalent to documentary evidence (see North Shore Towers Apt. Inc. v Three Towers Assoc., 104 AD3d 825, 961 NYS2d 504 [2d Dept 2013]; Fontanetta v John Doe 1, supra), nor is a retainer agreement (Harris v Barbera, supra).

Here, where the evidence submitted in support of defendant's motion to dismiss consists primarily of written interrogatories, affidavits, and deposition transcripts, the allegations in plaintiff's complaint cannot be dismissed pursuant to CPLR 3211 (a) (1), as the evidence supporting same does not fall within the "documentary evidence" contemplated by the statute (see Fontanetta v John Doe 1, supra).

Defendant next contends that the complaint must be dismissed on the ground that plaintiff lacked the legal capacity to sue pursuant to CPLR 3211 (a) (3). Insofar as the portions of her fourth, seventh, tenth, and twenty-fourth causes of action relate to property purportedly owned by plaintiff's son, Addison Klutchko, they are dismissed as plaintiff has failed to allege the capacity in which she brings the action on his behalf.

The statute of frauds as codified in GOL 5-701 and 5-703 states in pertinent part that

Here, each of the allegations contained in plaintiff's complaint is premised upon her contentions that "[d]efendant gave the [p]laintiff an engagement ring, at which time he asked the [p]laintiff to marry him sometime between 1994 and 1995", that thereafter they "entered into a partnership for the purpose of selling antiques", and that in or about July 1997 "the parties entered into an express partnership agreement whereby it was orally agreed and understood by and between the parties that [p]laintiff would perform the work, labor and services of a domestic nature on her part as well as render legal services for the [d]efendant's ever expanding businesses, and that the [d]efendant would support, maintain and provide for [p]laintiff in accordance with his earning capacity. There was the further understanding between the parties that all property, earnings and income acquired or accumulated while they lived together would be divided equally on termination of cohabitation and/or termination of their personal relationship." Plaintiff also alleges that a house was purchased in July of 1999 and titled to defendant, "although there was an express agreement between the [p]laintiff and [d]efendant that [t]he [h]ouse was to be placed in joint names as soon as the [p]laintiff's divorce became final." Plaintiff recites that her divorce did not become final until July of 2001 and that from the time the parties were together until 2008 when defendant vacated their residence, "there was a confidential and fiduciary relationship between the [p]laintiff and the [d]efendant."

Based upon the introductory language in her complaint as indicated above, and the allegations in the second cause of action which seeks a permanent injunction and return of "antiques, artwork and furniture", the third cause of action which seeks monetary damages for injuries caused to the antiques, artwork and furniture, the ninth and tenth causes of action which seek accountings and damages for breach of their express oral agreements, the eleventh cause of action which seeks an accounting in connection with their "express oral partnership", the twelfth cause of action which seeks a constructive trust of the assets of the oral partnership in the antique business, the thirteenth cause of action which seeks an accounting relative to the oral partnership agreement by which plaintiff alleges defendant was to support her, the seventeenth cause of action seeking specific performance of an oral contract to place plaintiff's name upon the deed of the 62A Twin Hills property, the eighteenth cause of action which seeks specific performance relative to the oral contract regarding the antiques "business", the nineteenth cause of action which seeks specific performance regarding the personal property which was allegedly part of the parties' oral agreements, and the twentieth cause of action which seeks recovery for the unjust enrichment of defendant for his breach of their oral contracts, the court dismisses same as violating the statute of frauds. Each of these causes of action is based in whole or in part upon a contract which was not to be performed within one year, was made in consideration of marriage, or concerned the devise of real property. As such, the agreements were required to be in writing in order for the court to enforce same (GOL 5-701 and 5-703 ). Plaintiff has failed to show that the transactions were exempt from the statute of frauds. Accordingly, as the second, third, ninth, tenth, eleventh, twelfth, thirteenth, seventeenth, eighteenth, nineteenth, and twentieth causes of action violate the statute of frauds, they are dismissed.It is well settled that an action for a constructive trust may be maintained to remedy a [*5]situation where property has been acquired under such circumstances that the record owner should not, in good conscience, retain the beneficial interest in such property (see Sharp v Kosmalski, 40 NY2d 119, 386 NYS2d 72 [1976]; Quodrozzi v Estate of Quodrozzi, 99 AD3d 688, 952 NYS2d 74 [2d Dept 2012]; Rowe v Kingston, 94 AD3d 852, 942 NYS2d 161 [2d Dept 2012]). It is not necessary to allege a written contract, since a constructive trust may be imposed by a court of equity if it finds that a promise was implied or inferred from the entirety of the transaction (see Sharp v Kosmalski, supra) and the statute of frauds is not a defense to an action to impress a constructive trust upon real property (McGrath v Hilding, 41 NY2d 625, 394 NYS2d 603 [1977]; Ubriaco v Martino, 36 AD3d 793, 828 NYS2d 490 [2d Dept 2007]; Vanasco v Angiolelli, 97 AD2d 462, 467 NYS2d 434 [2d Dept 2983]). In order to impose the equitable remedy of a constructive trust, generally four factors must be considered: "(1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment"(Sharp v Kosmalski, supra at 121; see also Rowe v Kingston, supra; Marini v Lombardo, 79 AD3d 932, 912 NYS2d 693 [2d Dept 2010] appeal denied 17 NY3d 705, 929 NYS2d 97 [2011]). "However, as these elements serve only as a guideline, a constructive trust may still be imposed even if all of the elements are not established" (Rowe v Kingston, supra at 853; Marini v Lombardo, supra).

A confidential or fiduciary relationship is "one founded upon trust or confidence reposed by one person in the integrity and fidelity of another. It is said that the relationship exists in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in, and relies upon, another" (Penato v George, 52 AD2d 939, 942, 383 NYS2d 900 [2d Dept 1976]). It is clear that an unmarried domestic partner may assert a cause of action for a constructive trust over property acquired during the relationship, to prevent unjust enrichment (see Matos v Gadman, 173 AD2d 442, 570 NYS2d 68 [2d Dept 1991]; Artache v Goldin, 133 AD2d 596, 519 NYS2d 702 [2d Dept 1987]; see also Gottlieb v Gottlieb, 166 AD2d 413, 560 NYS2d 477 [2d Dept 1990]) and that a contribution of funds, time and effort in reliance on a promise to share in the result may satisfy the third element required to impose a constructive trust (see Williams v Lynch 245 AD2d 715, 666 NYS2d 749 [3d Dept 1997]; Lester v Zimmer, 147 AD2d 340, 542, NYS2d 855 [2d Dept 1989]).

Under the facts alleged herein by plaintiff there is no question that the parties' relationship constituted one that was confidential and met the first element required of a constructive trust. However, because of her testimony during her divorce from her former husband, Bruce Klutchko, and claims that she held no interest in the 62A Twin Hills property, or any other realty, plaintiff cannot prove that there was a promise or a transfer of property in reliance thereon. As stated above, although Judge Hackeling found that plaintiff met her burden of proof in defending the summary proceeding with her claim of a constructive trust (Suissa v Baron, supra), this court is not bound by said decision (Rudd v Cornell; Egbert Square Realty, LLC v 112-114 Corp.; Towne v Asadourian; Begelman v Begelman; Huntington Medical Plaza P.C. v Travelers Indem. Co., supra). Judge Hackeling's decision reflects, and plaintiff's statements indicate, that she transferred approximately $150,000.00 into an out-of-state account in her mother's name in [*6]order to "avoid the reach of [plaintiff's] creditors" and that she thereafter transferred approximately $112,000.00 of those same monies to another out-of-state account over which her sister had access "to avoid potential Medicare obligations." It was from this account that her sister subsequently issued a check in the sum of $100,000.00 which plaintiff now claims was for her interest in the 62A Twin Hills property. During her matrimonial proceeding she indicated that this transfer of $100,000.00 was in partial repayment of loans made to her by defendant. Plaintiff, an attorney at law admitted in 1981 and currently registered to practice law in the State of New York, stated under oath, on multiple occasions that she did not purchase a home with defendant, that she gave him money in payment of a debt, that she was unable to work due to health issues, that she had no interest in any real estate, that she had no safe deposit box, and that she owned no furniture, household goods, collections, art, stamps, or coin with a value (or aggregate value) in excess of $500.00.

The causes of action for which defendant seeks dismissal, involve a claim that plaintiff is entitled to a constructive trust in the 62A Twin Hills property because she paid defendant $100,000.00 for the same and that there was an agreement by which she was entitled to ownership in the property, all dating back to the time during which she averred that she had no interest in any realty whatsoever. Additionally, she seeks replevin and the imposition of a constructive trust over personal property which she claimed not to possess during her divorce proceedings. Although a court of equity may impose a constructive trust if it finds that a promise was implied or inferred from the entirety of the transaction (see Sharp v Kosmalski, supra), in viewing the entirety of these circumstances, this court of equity cannot find that a promise was implied or inferred by defendant to plaintiff as such a finding would place the court's imprimatur upon a transaction which appears to suggest a dubious scheme to avoid creditors and a medicaid lien, and to obtain a better financial position in a matrimonial proceeding. This court, a court of equity, will not reward plaintiff's "perjury" in a prior action, thus determining that she is entitled to a constructive trust and that defendant's "hands" may have been "more unclean". Accordingly, the fourth, fifth, sixth, seventh, eighth, twenty-second, twenty-third, and twenty-fourth causes of action are dismissed. Similarly, that portion of the first cause of action which is not moot (plaintiff having been previously evicted from the premises) is dismissed as no preliminary injunction barring defendant from encumbering title is warranted, there being no constructive trust over the property.

Turning to defendant's claim that the complaint fails to state a cause of action,"the sole criterion" is whether "from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Guggenheimer v Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182 [1977]). Rule 3016 (b) of the CPLR mandates that where a cause of action is based upon fraud, "the circumstances constituting the wrong shall be stated in detail." The elements of common law fraud, which include a misrepresentation of a material fact, falsity, scienter, reliance, and injury, must be set forth in order for the complaint to withstand a motion for its dismissal; a dismissal of the complaint is warranted if the pleadings do not set forth the factual details and circumstances of the alleged fraud and misrepresentation with sufficient particularity (see Black Car and Livery Ins. Inc. v H & W Brokerage Inc., 28 AD3d 595, 813 [*7]NYS2d 751 [2nd Dept 2006]; 68 Burns New Holding, Inc. v Burns St. Owners Corp., 18 AD3d 857, 796 NYS2d 677 [2nd Dept 2005]; Kline v Taukpoint Realty Corp., 302 AD2d 433, 754 NYS2d 899 [2nd Dept 2003]). However, even if plead with sufficient particularity to comply with the requirements of CPLR 3016, "a cause of action premised upon fraud cannot lie where it is based on the same allegations as the breach of contract claim" (Heffez v L & G Gen. Constr., Inc., 56 AD3d 526, 867 NYS2d 198 [2d Dept 2008]), as a cause of action "for fraud does not lie where the only fraud claimed relates to an alleged breach of contract" (Treeline 990 Stewart Partners, LLC v RAIT Atria, LLC, 107 AD3d 788, 791, 967 NYS2d 119 [2d Dept 2013]).

Here, although dismissed for failure to comply with the statute of frauds, plaintiff's fraud claims all contain the same allegations as her breach of contract claims, which are unenforceable because they were not in writing (supra). Each fraud claim is based upon defendant's alleged failures to comply with the terms the parties had orally agreed upon. Plaintiff states no misrepresentation by defendant, other than his failure to live up to his terms of their alleged oral agreements in her three fraud causes of action. Furthermore, plaintiff comes before this court with "unclean hands". She testified at an examination before trial in connection with her divorce proceeding that she had partially repaid defendant in the sum of "about $112,000.00" for monies she owed him, that "a check was written given [sic] ultimately to the seller of the home for [defendant] Ron and in payment of partial debt", and that she did not purchase the house with defendant Ron Suissa but that it was purchased in "his name, and I didn't purchase the house, he did". Plaintiff now claims that the actions in "secreting" these monies amount to a fraudulent scheme on the part of defendant and seeks recovery from him, despite her previous statement, which were characterized by Judge Hackeling as "perjury" (see Suissa v Baron, supra). Additionally, through her previous statements and testimony, plaintiff indicated that she had placed her monies into different accounts to avoid creditors and medicaid liens. This court will not now countenance the nefarious schemes in which, plaintiff a licensed attorney, participated. Accordingly, the fourteenth, fifteenth, and sixteenth causes of action alleging fraud are dismissed.

Finally, plaintiff's twenty-first cause of action, one which alleges slander, is dismissed. The "[f]ailure to state the particular person or persons to whom . . . allegedly defamatory statements were made . . . warrants dismissal [of the cause of action]" (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497, 784 NYS2d 633 [2d Dept 2004]; see also Fusco v Fusco, 36 AD3d 589, 829 NYS2d 138 [2d Dept 2007]). The only specific statement in the complaint as to the slanderous words allegedly spoken by defendant were "Marcy [plaintiff] stole my property from my home." No indication is made as to whom the words were spoken other than "in the presence and hearing of numerous individuals, whose names are unknown to [p]laintiff." As the particular person or persons are not named, the cause of action does not suffice and is dismissed.

Accordingly, the court having reviewed each of the twenty-four causes of action in plaintiff's complaint, and having found them all lacking as is indicated herein above, defendant's motion is granted in its entirety and upon renewal of his motion to dismiss, the complaint is [*8]dismissed.

PETER H. MAYER, J.S.C.