green
Positive treatment
Issue: plaintiffs breach of contract claimNY ↗
Quoted verbatim 1×
20.1 score
“the general rule is that fraud cannot be predicated upon statements that are promissory in nature at the time they are made and which relate to future actions or conduct”
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004
2015
2026
Top citers, strongest first. 14 distinct citers.
How cited ↗
discussed
Cited as authority (verbatim quote)
Mercantile Bank of Michigan v. Clmia LLC
the general rule is that fraud cannot be predicated upon statements that are promissory in nature at the time they are made and which relate to future actions or conduct
cited
Cited as authority (rule)
Business Finland USA, Inc. v. Colangelo
App. Div. 2015) and quoting Cerabono v. Price, 7 A.D.3d 479, 480 (N.Y.
discussed
Cited as authority (rule)
Shasho v. Kleiner
“The elements needed for the imposition of a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment” (Cerabono v Price, 7 AD3d 479, 480 [2004]).
discussed
Cited as authority (rule)
Pereira v. Glicker
(2×)
The elements needed for the imposition of a constructive trust are (1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Simonds v Simonds, 45 NY2d 233, 241-242 [1978]; Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Cerabono v Price, 7 AD3d 479, 480 [2004]).
discussed
Cited as authority (rule)
Schwartz v. Schwartz
The plaintiffs complaint, read in the light most favorable to her, failed to allege the existence of a promise and a transfer in reliance thereon (see Cerabono v Price, 7 AD3d 479, 480 [2004]; see generally Simonds v Simonds, 45 NY2d 233, 241 [1978]; Cruz v McAneney, 31 AD3d 54, 59 [2006]).
discussed
Cited as authority (rule)
Parr v. Ronkonkoma Realty Venture I, LP
Therefore, the defendants established their entitlement to judgment as a matter of law dismissing the plaintiff’s constructive trust claims inasmuch as they demonstrated that, in the absence of some interest in the property, the plaintiff could not and did not effectuate a transfer of the subject real property in reliance upon their alleged promise, a necessary element of a cause of action seeking the imposition of a constructive trust upon property (see Cerabono v Price, 7 AD3d 479, 480 [2004]; Martin v Martin, 169 AD2d 821, 822 [1991]; Matter of Lefton [Bedell], 160 AD2d 702, 703-704 [1990…
discussed
Cited as authority (rule)
Ka Foon Lo v. Curis
U. Realty Corp., 7 AD3d 562, 562 [2004], quoting Noufrios v Murat, 193 AD2d 791, 792 [1993]; see Lakehill Assoc., Inc. v 6077 Jericho Turnpike Realty Corp., 18 AD3d 506, 508 [2005]; Cerabono v Price, 7 AD3d 479, 480 [2004]; Breco Envtl.
discussed
Cited as authority (rule)
Watson v. Pascal
To sustain a cause of action sounding in fraud, the plaintiff must show (1) that the defendant made material representations that were false, (2) that the defendant knew the representations were false and made them with the intent to deceive the plaintiff, (3) that the plaintiff justifiably relied on the defendant’s representations, and (4) that the plaintiff was injured as a result of the defendant’s representations (see Cerabono v Price, 7 AD3d 479, 480 [2004]; Giurdanella v Giurdanella, 226 AD2d 342, 343 [1996]).
discussed
Cited as authority (rule)
Nastasi v. Nastasi
In order to state a cause of action to impose a constructive trust, a plaintiff must allege “(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 Simonds v Simonds, 45 NY2d 233, 241-242 [1978]; Weiss v Weiss, 186 AD2d 247, 249 [1992]; cf. Modica v Modica, 15 AD3d 635 [2005]; Cerabono v Price, 7 AD3d 479, 480 [2004]; Levy v Moran, 270 AD2d 314, 315 [2000]; Ostreicher v Ostreicher, 238 AD2d 392, 393 [1997]).
discussed
Cited "see"
Beason v. Kleine
Although plaintiff testified that defendant promised to help him effectuate his plan to divide the subject property between his stepchildren, “representations . . . that are not statements of existing fact but are merely expressions of future expectations or that are promissory in nature at the time made and relate to future actions or conduct are insufficient to support a cause of action . . . for fraud” (Transit Mgt., LLC v Watson Indus., Inc., 23 AD3d 1152, 1155 [2005]; see Cerabono v Price, 7 AD3d 479 , 480 [2004], lv dismissed 3 NY3d 737 [2004], lv denied 4 NY3d 704 [2005] ).
discussed
Cited "see"
BEASON, ROSCOE v. KLEINE, DAVID
Although plaintiff testified that defendant promised to help him effectuate his plan to divide the subject property between his stepchildren, “representations . . . that are not statements of existing fact but are merely expressions of future expectations or that are promissory in nature at the time made and relate to future -4- 742 CA 11-01872 actions or conduct are insufficient to support a cause of action . . . for fraud” (Transit Mgt., LLC v Watson Indus., Inc., 23 AD3d 1152, 1155 ; see Cerabono v Price, 7 AD3d 479, 480 , lv dismissed 3 NY3d 737 , lv denied 4 NY3d 704 ).
discussed
Cited "see"
Beason v. Kleine
Although plaintiff testified that defendant promised to help him effectuate his plan to divide the subject property between his stepchildren, “representations . . . that are not statements of existing fact but are merely expressions of future expectations or that are promissory in nature at the time made and relate to future actions or conduct are insufficient to support a cause of action . . . for fraud” (Transit Mgt., LLC v Watson Indus., Inc., 23 AD3d 1152, 1155 [2005]; see Cerabono v Price, 7 AD3d 479 , 480 [2004], lv dismissed 3 NY3d 737 [2004], lv denied 4 NY3d 704 [2005] ).
discussed
Cited "see, e.g."
BNP Paribas Mortgage Corp. v. Bank of America, N.A.
Soc’y v. Shakerdge, 49 N.Y.2d 939 , 428 N.Y.S.2d 623 , 406 N.E.2d 440, 440-41 (N.Y.1980) (citations omitted); see also Cerabono v. Price, 7 A.D.3d 479 , 775 N.Y.S.2d 585, 585 (App.Div.2004). “[A]s an equitable doctrine its application to particular circumstances is susceptible of some flexibility.” Id.
cited
Cited "see, e.g."
Petrello v. White
Soc’y v. Shakerdge, 49 N.Y.2d 939, 940 , 428 N.Y.S.2d 623 , 406 N.E.2d 440 (1980) (citations omitted); see also Cerabono v. Price, 7 A.D.3d 479 , 775 N.Y.S.2d 585 (2d Dep’t 2004).
Retrieving the full opinion text from the archive…
April Catanzaro
v.
John S. Wallenstein
v.
John S. Wallenstein
Appellate Division of the Supreme Court of the State of New York.
May 3, 2004.
Cited by 2 opinions | Published
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 6, 2003, which denied her motion to vacate an order of the same court dated September 10, 2002, granting the defendant’s motion to dismiss the complaint, upon her default in opposing the motion.
Ordered that the order is affirmed, without costs or disbursements.
A plaintiff attempting to vacate a default in opposing a motion to dismiss the complaint must demonstrate both a reasonable excuse for the default and a meritorious cause of action (see Vaval v Malone, 2 AD3d 839 [2003]; Katsnelson v ELRAC, Inc., 304 AD2d 619 [2003]). The plaintiff failed to meet this burden. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs motion. Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.