                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 7, 2016                     520176
________________________________

JACK KLUGMAN,
                    Appellant,
     v
                                            MEMORANDUM AND ORDER
VICKI LAFOREST, as Personal
   Representative of JUDITH
   POUST, Deceased,
                    Respondent.
________________________________


Calendar Date:   February 16, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Niles & Bracy, PLLC, Plattsburgh (John M. Crotty of
counsel), for appellant.

      Law Offices of MaryAnne Bukolt-Ryder, Plattsburgh (MaryAnne
Bukolt-Ryder of counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Ryan, J.),
entered October 24, 2014 in Clinton County, which, among other
things, granted defendant's motion for a trial order of
dismissal.

      After Judith Poust (hereinafter decedent) ended the
romantic relationship she had with plaintiff, he initiated this
action seeking a one-half interest in the real property that he
had been forced to vacate as a result of the end of their
                               -2-                520176

relationship.1 Approximately five years prior, plaintiff had
executed a quitclaim deed transferring all of his interest in
that property – as a then-joint tenant with rights of
survivorship – to decedent, resulting in her fee simple ownership
of the property. Plaintiff alleged in his complaint that he was
entitled to, among other things, the recovery of that interest or
to damages based on theories of constructive trust and unjust
enrichment. At trial, after the close of plaintiff's case,
Supreme Court granted defendant's motion for a trial order of
dismissal. Plaintiff appeals, and we affirm.

      Supreme Court properly precluded plaintiff from testifying
about his discussions with decedent regarding the transfer of
property because such testimony was inadmissible pursuant to the
Dead Man's Statute. The Dead Man's Statute "'precludes a party
or person interested in the underlying event from offering
testimony concerning a personal transaction or communication with
the decedent'" (Miller v Lu-Whitney, 61 AD3d 1043, 1045 [2009],
quoting Matter of Rosenblum, 284 AD2d 820, 821 [2001], lv denied
97 NY2d 604 [2001]; see CPLR 4519). Because this rule is
intended to provide a decedent's estate with a shield but not a
sword, however, the protection is waived if the estate's
representative elicits testimony from an interested party that
would otherwise fall within the statute's bar, that is, testimony
"concerning a personal transaction or communication between the
witness and the deceased person" (CPLR 4519; see Matter of Wood,
52 NY2d 139, 145 [1981]). When defendant asked plaintiff a
question regarding the legal advice that he had received from an
attorney regarding the consequences of transferring his interest
in the real property to decedent, she did not elicit testimony
from him regarding a "personal transaction or communication
between [him] and [decedent]" (CPLR 4519). Because defendant did
not elicit proof that would otherwise fall within the ambit of
the Dead Man's Statute, plaintiff was not entitled to disregard
that statute's bar based on a waiver (see CPLR 4519; Matter of
Garland 97 NYS2d 442, 445 [Sur Ct, Westchester County 1950];
Matter of Walker, 177 Misc 991, 993 [Sur Ct, New York County
1941]).


    1
        Decedent died during the pendency of this action.
                              -3-                520176

      Supreme Court also properly granted defendant's motion for
a trial order of dismissal. A motion for a trial order of
dismissal "pursuant to CPLR 4401 is appropriate when, viewing the
evidence in a light most favorable to the nonmoving party and
affording such party the benefit of every inference, there is no
rational process by which a [factfinder] could find in favor of
the nonmovant" (Hytko v Hennessey, 62 AD3d 1081, 1083 [2009];
accord Peluso v C.R. Bard, Inc., 124 AD3d 1027, 1028 [2015]). A
constructive trust requires "(1) a confidential or fiduciary
relation, (2) a promise, (3) a transfer in reliance thereon and
(4) unjust enrichment" (Sharp v Kosmalski, 40 NY2d 119, 121
[1976]; see Johnson v Lih, 216 AD2d 821, 822-823 [1995]).
Finally, "[a] person or entity is unjustly enriched 'when
retention of the benefit received would be unjust considering the
circumstances of the transfer and the relationship of the
parties'" (Kain Dev., LLC v Krause Props., LLC, 130 AD3d 1229,
1235 [2015], quoting Enzien v Enzien, 96 AD3d 1136, 1139 [2012]).
Notably, New York law recognizes that it is natural for parties
who cohabitate and/or who are romantically involved to provide
gratuitous services to one another (see Morone v Morone, 50 NY2d
481, 488 [1980]; see generally Moak v Raynor, 28 AD3d 900, 903
[2006]).

      Because of the Dead Man's Statute, the record is devoid of
evidence regarding plaintiff's communication or transaction with
decedent in transferring all of his interest in the property to
her. Plaintiff was the sole witness for his case, and his
testimony revealed that, at the time he gave decedent that
interest, they had been a cohabitating couple for approximately a
decade. Plaintiff acknowledged that he had received legal advice
prior to making the property transfer to decedent, and he further
admitted that, based on an attorney's advice, he understood that
he was giving up all "right, title and interest" in the property
by transferring his interest to decedent.

      Plaintiff's remaining testimony, however, was not entirely
consistent with that alleged understanding. Plaintiff described
a will that he had created years prior to this transfer that he
alleged dictated by its terms that, upon decedent's death,
plaintiff's family "would get 50 percent of the sale [of the
property]." He further explained that he believed that, as to
                              -4-                520176

his intention to benefit his family in this manner, his "will
stood regardless" of his transfer of his entire interest in the
property to decedent. Further evidence revealed that, at the
time of the transfer, decedent had a will – also executed years
earlier – that made certain bequests to plaintiff's children. At
a point after plaintiff transferred the property, decedent
modified her will and those children were no longer beneficiaries
pursuant to that modified will. Plaintiff acknowledged that he
and decedent had no agreement that decedent's prior will would
remain in effect. There is no proof in the record indicating
that decedent encouraged the transfer of the property interest to
her.

      Considering the trial evidence, no rational factfinder
could find that plaintiff met his burden of establishing that
decedent made an express or implied promise to maintain
plaintiff's children as beneficiaries of her estate, that
plaintiff made a transfer in reliance on that alleged promise or
that decedent was unjustly enriched. First addressing the
promise element, plaintiff explicitly testified that he did not
have any agreement with decedent regarding her continuing to
maintain his children as beneficiaries of her will. Further, the
only evidence connecting the transfer of property with a will was
plaintiff's testimony regarding his subjective understanding that
decedent would be required to bequeath the property to
plaintiff's children as a result of the terms of his own will.
Accordingly, in the absence of an actual promise on decedent's
part or any facts that could allow a factfinder to conclude that
plaintiff's transfer was instinct with obligation related to
decedent's prior will, plaintiff failed, as a matter of law, to
establish a promise.

      Even assuming that there was a promise, plaintiff's
testimony leads to a single reasonable conclusion that plaintiff
did not rely on such a promise in making the transfer. According
to plaintiff's testimony, he believed – albeit incorrectly – that
his will would dictate that decedent bequest an interest in the
property to his children, despite the fact that he had
transferred all his interest in the property. Plaintiff never
testified that he relied on a promise by decedent to maintain the
bequests in her prior will, which is unsurprising given that,
                              -5-                520176

according to his logic, such a promise would be unnecessary.
Accordingly, given plaintiff's testimony that he believed that he
had legally secured the bequest related to the property through
his own will, no reasonable factfinder could conclude that he
transferred the property as a result of his reliance on a promise
that decedent would maintain her then-existing will.

      Finally, decedent was not unjustly enriched by either the
transfer of the property or by plaintiff's subsequent
contributions to its upkeep while he lived there. Plaintiff gave
decedent his interest in the property and made his subsequent
contributions to it only after seeking out and receiving the
correct legal advice that he would have no legal right, title or
interest in that property after it was transferred. Equity and
good conscience permit decedent's estate to retain the gifts that
plaintiff gave decedent, regardless of the fact that she did not
make bequests to plaintiff's children and the fact that, years
after the transfer of the property, she decided to end her
relationship with plaintiff. Plaintiff's ongoing contributions
to the property for the remainder of the years that he resided
there – which amounted to approximately $10,000 a year when
viewed in the light most favorable to plaintiff – do not lead to
a different result. Plaintiff failed to put forward any proof
that could establish that those amounts led to decedent's
enrichment – let alone a rationally discernable amount of
enrichment – by being above and beyond maintenance costs
associated with his own use of the property (see Rossignol v
Silvernail, 222 AD2d 939, 940 [1995]; see generally Wilson v
La Van, 22 NY2d 131, 135 [1968]). Plaintiff's remaining
contentions are also without merit.

     Egan Jr., Lynch, Devine and Clark, JJ., concur.
                        -6-                  520176

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
