Preview
FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022
"G"
EXHIBIT
FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022
ORIGINA9
STATE OF NEW YORK
SUPREME COURT COUNTY OF SARATOGA
CANNONE VENTURES, INC.,
Plaintiff, DECISION AND ORDER
RJI No. 45-1-2015-0315
-against- Index No. 20143353
SALIMAH K. BADRUDDIN, a/k/a SALIMAH BADRUDDIN,
YASMIN NURANI KADERALI BADRUDDIN and a
ROBERT H. HAFNER, ESQ., Special Administrator of the Estate
of Mohamed K. Badruddin, a/k/a Mohamed Kaderali Badruddin,
Defendants. uP,o
a O
PRESENT: HON. THOMAS D. NOLAN, JR.
Supreme Court Justice
APPEARANCES: KING, ADANG, ARPEY, LLP
Attorneys for Plaintiff
340 Broadway, Suite 3
Saratoga Springs, New York 12866
MILLER, MANNIX, SCHACHNER & HAFNER, LLC
Attorneys for Defendant Special Administrator
15 West Notre Dame Street
Glens Falls, New York 12801
SALIMAH BADRUDDIN
Self-Represented Defendant
22 Elizabeth Lane
Queensbury, New York 12804
YASMIN NURANI BADRUDDIN
Self-Represented Defendant
22 Elizabeth Lane
Queensbury, New York 12804
This action is based on the sale in July 2014 of the Bluebird Mobile Home Park located in
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the Town of Moreau, Saratoga County, by defendant Salimah Badruddin (Salimah) to plaintiff
Cannone Ventures, Inc. (Cannone). In March 2014, Salimah contracted to sell the property to
Cannone for $925,000.00. At the closing, after adjustments, Cannone paid $913,824.23 to
Salimah and Salimah issued to Cannone a warranty deed which was recorded on July 16, 2014 as
Instrument No. 2014020347 in the Office of the Saratoga County Clerk. Salimah had
purportedly acquired titleto the property by quit claim deed dated May 29, 2013 issued by
defendant Yasmin Nurani Kaderali Badruddin (Yasmin Nurani), Salimah's mother, which deed
was recorded on November 13, 2013 in the Office of the Saratoga County Clerk as Instrument
No. 2013045479. Yasmin Nurani had purportedly acquired titleto the property by quit claim
deed dated April 2, 2007 issued by Mohamed Badruddin, Yasmin Nurani's purported husband
and Salimah's father, which deed was recorded on November 13, 2013 in the Office of the
Saratoga County Clerk as Instrument No. 2013045476.
As now relevant, Mohamed Badruddin (Mohamed) died on May 16, 2007, approximately
six weeks after he purportedly signed the quit claim deed transferring title to the property to his
purported wife, Yasmin Nurani. Mohamed was a resident of Warren County, New York, and his
will designated his purported wife, Yasmin Nurani, as Executrix. In October 2008, the Will was
admitted to probate and Letters Testamentary were issued by the Surrogate of Warren County to
Yasmin Nurani. In 2009, the Executrix filed an inventory of assets which included the subject
property as one of eight properties which the decedent owned at the time of his death.
Subsequently, the decedents firstwife, contending that she and decedent were married in 1970 in
the Country of Kenya and that they had never divorced, filedpetitions in Surrogate's Court which
ultimately resulted in a settlement agreement between her and the Estate awarding to her an
2
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elective share of the decedents estate. In March 2013, the Surrogate issued an order directing
that none of the decedent's real property be sold without prior court approval. Neither the 2013
purported conveyance of property by Yasmin Nurani to Salimah nor the July 2014 purported
conveyance by Salimah to Cannone had been approved by the Surrogate. In October 2014, the
Surrogate removed Yasmin Nurani as Executrix and appointed as Special Administrator of the
estate,defendant Mark Hafner (Special Administrator). Also in October 2014, the decedents
firstand stillalleged wife commenced an action in Supreme Court, Warren County, against
Yasmin Nurani and Salimah for judgment setting aside the purportedly post-death conveyances
of ten (10) real properties, including the property at issue in this action, owned by the decedent
through the use of allegedly fraudulent quit claim deeds dated prior to the decedents death but
2013.1
not filed until November
In March 2016, Cannone filed a claim in Surrogate's Court against the decedents estate
for $948,842.23 and commenced thisaction . In its amended complaint, Cannone asserts 12
causes of action, 11 against the defendants Salimah and Yasmin Nurani and one against the
Special Administrator. The 11 causes of action seek rescission of the property sale and/or
damages based on fraud, conspiracy, breach of deed warranty and misrepresentations. The cause
of action against the Special Administrator seeks judgment impressing a constructive trust on
funds and assets held by the estate.
Defendants Salimah and Yasmin Nurani, as self-represented litigants, answered the
complaint and defendant Special Administrator answered the complaint. There has been
I
Badruddin v. Nurani and Badruddin, Sup Ct, Warren County, Index No. 60700, RR No.
56-1-2015-0079 (Muller, J.)
3
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extensive motion practice in the Supreme Court action with the court (Chauvin, J.) denying three
motions made by defendants Salimah and Yasmin Nurani seeking dismissal of the complaint. In
February 2018, the court (Muller, J.) inthe Warren County Supreme Court action issued a
decision and order, which, as relevant to this action, granted summary judgment to the plaintiff
there on her firstcause of action alleging fraudulent conveyances and declared that the deeds
(Instruments No. 2013045476 and 2013045479) are "void, cancelled and shall be struck from
Clerk".2
the official records of the [Saratoga] County
By order entered in this action on April 17, 2018, the court (Chauvin, J.) conditionally
struck the answer of defendants Salimah and Yasmin Nurani unless they complied within 90 days
with certain discovery demands. On April 18, 2018 that order was served on defendants with
notice of entry. Defendants thereafter failed to comply with the order; thus their answers were
deemed stricken.
pending.3
Now three motions are The first by defendant Special Administrator seeks an
order granting summary judgment dismissing the 12th cause of action in Cannone's amended
complaint. Plaintiff Cannone opposes.
The second is by plaintiff for an order granting a default judgment against defendants,
Salimah and Yasmin Nurani, based on theirnon-compliance with the order conditionally striking
their answer unless they complied with a certain discovery demand, within 90 days of service of
a copy of the order with notice of entry, that they produce "true and accurate copies, certified by
2An amended Decision and Order was issued in May 2018 which did not affect the
cancellation of the deeds involved in this action.
3In January 2019, the assigned Justice retired and the action was reassigned to this court.
4
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the Internal Revenue Service, of the complete income tax returns, not transcripts thereof, for the
years 2011, 2012, 2013 and 2014 including, but not limited to, all schedules and attachments
Park."
reporting the income and expenses of the Bluebird Terrace Mobile Home Defendants
Salimah and Yasmin Nurani oppose.
Defendants Salimah and Yasmin Nurani move for an order granting summary judgment
complaint.4
dismissing the amended Plaintiff opposes.
defendants'
Contrary to these self-represented claims, the order with notice of entry
conditionally striking their answer was duly served on them by mail by plaintiffs counsel on
April 18, 2018. To avoid the conditional sanction imposed, defendants were required to produce
the income tax records specified in that order. The record demonstrates that they did not satisfy
that condition. Judge Chauvin's order is the law of the case and that order, unless modified or
defendants'
vacated, establishes that these answer has been stricken and that they are now in
default.5
This court is constrained by long-standing policy from revisiting an issue which has
already been decided. Hollis v Charlew Const. Co., 302 AD2d 700 (3rd Dept. 2003). Being in
default, defendants Salimah and Yasmin Nurani are unable to move for summary judgment.
4Following the service of the Special Administrator's motion for summary judgment, the
cross-motion"
self-represented defendants served what was denominated as a "notice of seeking
summary judgment dismissing the plaintiffs complaint. Plaintiffs counsel and the Special
Administrator's counsel correctly pointed out that pursuant to CPLR 2215, a cross-motion may
be properly made only against a "moving party". Since plaintiff was not then a moving party, the
cross-motion was a nullity. Thereafter, these defendants, relying on the same supporting
motion"
affidavit and exhibits, served a "notice of seeking the same relief curing the procedural
faux pax.
SDefendants did not move to vacate the conditional dismissal order or seek to modify itto
grant them additional time for compliance.
5
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Their motion is denied, without costs.
Again, since defendants Salimah and Yasmin Nurani are in default, and based on the fact
that there has been a judicial determination in the Warren County Supreme Court action that both
defendants lacked legal titleto the property purportedly conveyed to Cannone, Cannone
establishes a prima facie case to enter a default judgment against them on allcauses of action
alleged against them in the amended verified complaint. Defendants Salimah and Yasmin
Nurani are collaterally estopped from challenging in this action the findings of Justice Muller in
the Warren County action. Based on the declaration that the purported quit claim deed from the
decedent to Yasmin Nurani and the deed from Yasmin Nurani to Salimah are both void, Cannone
does not now have marketable title to the property. Cannone is entitled to judgment rescinding
the transaction based on that failure of consideration/title or if the titledefect can be remedied
and Cannone elects to accept titlefrom the Estate, Cannone alternately would be entitled to seek
defendants' acts.6
money damages for losses caused by these fraudulent and wrongful
Plaintiff Cannone's motion to enter judgment by default on the issue of liability against
defendants Salimah Badruddin and Yasmin Nurani Kaderali Badruddin is granted, without costs.
damages.7
An inquest will be scheduled to determine Cannone's
Now the Special Administrator's motion. The amended complaint's 12th cause of action
alleges that the Special Administrator acquired possession of $913,824.23, which Cannone
6Should recision occur, Cannone, who operated the mobile home park since July 2014,
would have to account to the Estate for any profits generated.
7Again, Cannone will have to elect whether to pursue judgment rescinding the transaction
with resulting monetary damages or consent to accept titlefrom the Estate and seek financial
defendants'
damages caused by the wrongful acts.
6
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contends represents the sale proceeds that were paid to Salimah and that said funds are "held in
Cannone".8
trust [by the Special Administrator] for the benefit of Cannone seeks judgment
impressing a constructive trust against said funds.
In his motion, the Special Administrator asserts as an affinnative defense that an
equitable remedy, i.e.the imposition of a trust, cannot be granted since Cannone's alleged
damages are monetary and that the essential elements necessary to support the issuance of a
satisfied.9
constructive trust against the funds of the Estate cannot be Here the Special
Administrator points out that the transfer of the property was made by Yasmin Nurani in her
individual capacity and not as Executrix. In his supporting affidavit (par 33) the Special
Administrator goes on to statein relevant part:
I have been and remain willing to resolve any title issues
which result from nullification of the deed to Plaintiff
in this matter and have the authority to issue a quit claim
deed to Plaintiff upon approval by the Surrogate's Court.
The Special Administrator points out that Cannone has been in possession of the property
since July 2014.
In opposition, Cannone contends that ifand when estate assets are distributed by the
Special Administrator, defendant Yasmin Nurani will likely receive a distribution of cash and/or
assets. Cannone further asserts that if itobtains a money judgment in this action against Yasmin
8The Special Administrator has apparently acquired possession of funds belonging to the
Estate that were held in brokerage accounts of defendant Salimah which apparently included the
proceeds from the sale of this property to Cannone.
9The elements are 1) a confidential and fiduciary relationship between the parties; 2) a
promise; 3) a transfer made in reliance of the promise; and 4) unjust enrichment ifthe trust were
not imposed. Leire v Anderson-Leire, 22 AD3d 944 (3d Dept. 2005)
7
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Nurani, itmay have difficulty enforcing itsjudgment since she isa citizen of Canada. Thus
Cannone contends that any estate funds which might be distributed to Yasmin Nurani should be
restrained by the imposition of a constructive trust.
Again, allproperty now held by or under the control of the Special Administrator belongs
to the Estate of Mohamed Badruddin. There is no claim that the decedent was involved in or
participated in the fraudulent conveyance of this particular property. Again, as Judge Muller
found, defendant Yasmin Nurani acted in her personal capacity in wrongfully participating in
"forging"
a deed from the decedent to herself and then fraudulently transferring the property to
Salimah but not in her capacity as Executrix. There is no legal basis to support impressing a
constructive trust against the assets of the Estate since there was no transfer by the Estate and as
well, the Estate and Cannone were not in a confidential or fiduciary relationship.
12*
The Special Administrator's motion is granted, and the cause of action against him is
dismissed, without costs.
This constitutes the decision the court. The original decision and order and all original
motion papers are delivered to the Supreme Court Clerk/County Clerk for filing. The signing of
this decision and the delivery of this decision and order to the Saratoga County shall
Clef ng
r-r:0
constitute notice of entry under CPLR Section 2220, and the plaintiff is not reliev om tl)
applicable provisions of that rule regarding service of notice of entry.
So Ordered. -
5
DATED: December 16, 2019
Saratoga Springs,New York
ENTERED
Craig A. Hayner
HON. THOMAS D NOL ,
Supreme Court Jus 'ce
Saratoga County Clerk
8
Preview
FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022 "G" EXHIBIT FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022 ORIGINA9 STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA CANNONE VENTURES, INC., Plaintiff, DECISION AND ORDER RJI No. 45-1-2015-0315 -against- Index No. 20143353 SALIMAH K. BADRUDDIN, a/k/a SALIMAH BADRUDDIN, YASMIN NURANI KADERALI BADRUDDIN and a ROBERT H. HAFNER, ESQ., Special Administrator of the Estate of Mohamed K. Badruddin, a/k/a Mohamed Kaderali Badruddin, Defendants. uP,o a O PRESENT: HON. THOMAS D. NOLAN, JR. Supreme Court Justice APPEARANCES: KING, ADANG, ARPEY, LLP Attorneys for Plaintiff 340 Broadway, Suite 3 Saratoga Springs, New York 12866 MILLER, MANNIX, SCHACHNER & HAFNER, LLC Attorneys for Defendant Special Administrator 15 West Notre Dame Street Glens Falls, New York 12801 SALIMAH BADRUDDIN Self-Represented Defendant 22 Elizabeth Lane Queensbury, New York 12804 YASMIN NURANI BADRUDDIN Self-Represented Defendant 22 Elizabeth Lane Queensbury, New York 12804 This action is based on the sale in July 2014 of the Bluebird Mobile Home Park located in FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022 the Town of Moreau, Saratoga County, by defendant Salimah Badruddin (Salimah) to plaintiff Cannone Ventures, Inc. (Cannone). In March 2014, Salimah contracted to sell the property to Cannone for $925,000.00. At the closing, after adjustments, Cannone paid $913,824.23 to Salimah and Salimah issued to Cannone a warranty deed which was recorded on July 16, 2014 as Instrument No. 2014020347 in the Office of the Saratoga County Clerk. Salimah had purportedly acquired titleto the property by quit claim deed dated May 29, 2013 issued by defendant Yasmin Nurani Kaderali Badruddin (Yasmin Nurani), Salimah's mother, which deed was recorded on November 13, 2013 in the Office of the Saratoga County Clerk as Instrument No. 2013045479. Yasmin Nurani had purportedly acquired titleto the property by quit claim deed dated April 2, 2007 issued by Mohamed Badruddin, Yasmin Nurani's purported husband and Salimah's father, which deed was recorded on November 13, 2013 in the Office of the Saratoga County Clerk as Instrument No. 2013045476. As now relevant, Mohamed Badruddin (Mohamed) died on May 16, 2007, approximately six weeks after he purportedly signed the quit claim deed transferring title to the property to his purported wife, Yasmin Nurani. Mohamed was a resident of Warren County, New York, and his will designated his purported wife, Yasmin Nurani, as Executrix. In October 2008, the Will was admitted to probate and Letters Testamentary were issued by the Surrogate of Warren County to Yasmin Nurani. In 2009, the Executrix filed an inventory of assets which included the subject property as one of eight properties which the decedent owned at the time of his death. Subsequently, the decedents firstwife, contending that she and decedent were married in 1970 in the Country of Kenya and that they had never divorced, filedpetitions in Surrogate's Court which ultimately resulted in a settlement agreement between her and the Estate awarding to her an 2 FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022 elective share of the decedents estate. In March 2013, the Surrogate issued an order directing that none of the decedent's real property be sold without prior court approval. Neither the 2013 purported conveyance of property by Yasmin Nurani to Salimah nor the July 2014 purported conveyance by Salimah to Cannone had been approved by the Surrogate. In October 2014, the Surrogate removed Yasmin Nurani as Executrix and appointed as Special Administrator of the estate,defendant Mark Hafner (Special Administrator). Also in October 2014, the decedents firstand stillalleged wife commenced an action in Supreme Court, Warren County, against Yasmin Nurani and Salimah for judgment setting aside the purportedly post-death conveyances of ten (10) real properties, including the property at issue in this action, owned by the decedent through the use of allegedly fraudulent quit claim deeds dated prior to the decedents death but 2013.1 not filed until November In March 2016, Cannone filed a claim in Surrogate's Court against the decedents estate for $948,842.23 and commenced thisaction . In its amended complaint, Cannone asserts 12 causes of action, 11 against the defendants Salimah and Yasmin Nurani and one against the Special Administrator. The 11 causes of action seek rescission of the property sale and/or damages based on fraud, conspiracy, breach of deed warranty and misrepresentations. The cause of action against the Special Administrator seeks judgment impressing a constructive trust on funds and assets held by the estate. Defendants Salimah and Yasmin Nurani, as self-represented litigants, answered the complaint and defendant Special Administrator answered the complaint. There has been I Badruddin v. Nurani and Badruddin, Sup Ct, Warren County, Index No. 60700, RR No. 56-1-2015-0079 (Muller, J.) 3 FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022 extensive motion practice in the Supreme Court action with the court (Chauvin, J.) denying three motions made by defendants Salimah and Yasmin Nurani seeking dismissal of the complaint. In February 2018, the court (Muller, J.) inthe Warren County Supreme Court action issued a decision and order, which, as relevant to this action, granted summary judgment to the plaintiff there on her firstcause of action alleging fraudulent conveyances and declared that the deeds (Instruments No. 2013045476 and 2013045479) are "void, cancelled and shall be struck from Clerk".2 the official records of the [Saratoga] County By order entered in this action on April 17, 2018, the court (Chauvin, J.) conditionally struck the answer of defendants Salimah and Yasmin Nurani unless they complied within 90 days with certain discovery demands. On April 18, 2018 that order was served on defendants with notice of entry. Defendants thereafter failed to comply with the order; thus their answers were deemed stricken. pending.3 Now three motions are The first by defendant Special Administrator seeks an order granting summary judgment dismissing the 12th cause of action in Cannone's amended complaint. Plaintiff Cannone opposes. The second is by plaintiff for an order granting a default judgment against defendants, Salimah and Yasmin Nurani, based on theirnon-compliance with the order conditionally striking their answer unless they complied with a certain discovery demand, within 90 days of service of a copy of the order with notice of entry, that they produce "true and accurate copies, certified by 2An amended Decision and Order was issued in May 2018 which did not affect the cancellation of the deeds involved in this action. 3In January 2019, the assigned Justice retired and the action was reassigned to this court. 4 FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022 the Internal Revenue Service, of the complete income tax returns, not transcripts thereof, for the years 2011, 2012, 2013 and 2014 including, but not limited to, all schedules and attachments Park." reporting the income and expenses of the Bluebird Terrace Mobile Home Defendants Salimah and Yasmin Nurani oppose. Defendants Salimah and Yasmin Nurani move for an order granting summary judgment complaint.4 dismissing the amended Plaintiff opposes. defendants' Contrary to these self-represented claims, the order with notice of entry conditionally striking their answer was duly served on them by mail by plaintiffs counsel on April 18, 2018. To avoid the conditional sanction imposed, defendants were required to produce the income tax records specified in that order. The record demonstrates that they did not satisfy that condition. Judge Chauvin's order is the law of the case and that order, unless modified or defendants' vacated, establishes that these answer has been stricken and that they are now in default.5 This court is constrained by long-standing policy from revisiting an issue which has already been decided. Hollis v Charlew Const. Co., 302 AD2d 700 (3rd Dept. 2003). Being in default, defendants Salimah and Yasmin Nurani are unable to move for summary judgment. 4Following the service of the Special Administrator's motion for summary judgment, the cross-motion" self-represented defendants served what was denominated as a "notice of seeking summary judgment dismissing the plaintiffs complaint. Plaintiffs counsel and the Special Administrator's counsel correctly pointed out that pursuant to CPLR 2215, a cross-motion may be properly made only against a "moving party". Since plaintiff was not then a moving party, the cross-motion was a nullity. Thereafter, these defendants, relying on the same supporting motion" affidavit and exhibits, served a "notice of seeking the same relief curing the procedural faux pax. SDefendants did not move to vacate the conditional dismissal order or seek to modify itto grant them additional time for compliance. 5 FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022 Their motion is denied, without costs. Again, since defendants Salimah and Yasmin Nurani are in default, and based on the fact that there has been a judicial determination in the Warren County Supreme Court action that both defendants lacked legal titleto the property purportedly conveyed to Cannone, Cannone establishes a prima facie case to enter a default judgment against them on allcauses of action alleged against them in the amended verified complaint. Defendants Salimah and Yasmin Nurani are collaterally estopped from challenging in this action the findings of Justice Muller in the Warren County action. Based on the declaration that the purported quit claim deed from the decedent to Yasmin Nurani and the deed from Yasmin Nurani to Salimah are both void, Cannone does not now have marketable title to the property. Cannone is entitled to judgment rescinding the transaction based on that failure of consideration/title or if the titledefect can be remedied and Cannone elects to accept titlefrom the Estate, Cannone alternately would be entitled to seek defendants' acts.6 money damages for losses caused by these fraudulent and wrongful Plaintiff Cannone's motion to enter judgment by default on the issue of liability against defendants Salimah Badruddin and Yasmin Nurani Kaderali Badruddin is granted, without costs. damages.7 An inquest will be scheduled to determine Cannone's Now the Special Administrator's motion. The amended complaint's 12th cause of action alleges that the Special Administrator acquired possession of $913,824.23, which Cannone 6Should recision occur, Cannone, who operated the mobile home park since July 2014, would have to account to the Estate for any profits generated. 7Again, Cannone will have to elect whether to pursue judgment rescinding the transaction with resulting monetary damages or consent to accept titlefrom the Estate and seek financial defendants' damages caused by the wrongful acts. 6 FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022 contends represents the sale proceeds that were paid to Salimah and that said funds are "held in Cannone".8 trust [by the Special Administrator] for the benefit of Cannone seeks judgment impressing a constructive trust against said funds. In his motion, the Special Administrator asserts as an affinnative defense that an equitable remedy, i.e.the imposition of a trust, cannot be granted since Cannone's alleged damages are monetary and that the essential elements necessary to support the issuance of a satisfied.9 constructive trust against the funds of the Estate cannot be Here the Special Administrator points out that the transfer of the property was made by Yasmin Nurani in her individual capacity and not as Executrix. In his supporting affidavit (par 33) the Special Administrator goes on to statein relevant part: I have been and remain willing to resolve any title issues which result from nullification of the deed to Plaintiff in this matter and have the authority to issue a quit claim deed to Plaintiff upon approval by the Surrogate's Court. The Special Administrator points out that Cannone has been in possession of the property since July 2014. In opposition, Cannone contends that ifand when estate assets are distributed by the Special Administrator, defendant Yasmin Nurani will likely receive a distribution of cash and/or assets. Cannone further asserts that if itobtains a money judgment in this action against Yasmin 8The Special Administrator has apparently acquired possession of funds belonging to the Estate that were held in brokerage accounts of defendant Salimah which apparently included the proceeds from the sale of this property to Cannone. 9The elements are 1) a confidential and fiduciary relationship between the parties; 2) a promise; 3) a transfer made in reliance of the promise; and 4) unjust enrichment ifthe trust were not imposed. Leire v Anderson-Leire, 22 AD3d 944 (3d Dept. 2005) 7 FILED: SARATOGA COUNTY CLERK 06/23/2022 05:44 PM INDEX NO. EF20212538 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/23/2022 Nurani, itmay have difficulty enforcing itsjudgment since she isa citizen of Canada. Thus Cannone contends that any estate funds which might be distributed to Yasmin Nurani should be restrained by the imposition of a constructive trust. Again, allproperty now held by or under the control of the Special Administrator belongs to the Estate of Mohamed Badruddin. There is no claim that the decedent was involved in or participated in the fraudulent conveyance of this particular property. Again, as Judge Muller found, defendant Yasmin Nurani acted in her personal capacity in wrongfully participating in "forging" a deed from the decedent to herself and then fraudulently transferring the property to Salimah but not in her capacity as Executrix. There is no legal basis to support impressing a constructive trust against the assets of the Estate since there was no transfer by the Estate and as well, the Estate and Cannone were not in a confidential or fiduciary relationship. 12* The Special Administrator's motion is granted, and the cause of action against him is dismissed, without costs. This constitutes the decision the court. The original decision and order and all original motion papers are delivered to the Supreme Court Clerk/County Clerk for filing. The signing of this decision and the delivery of this decision and order to the Saratoga County shall Clef ng r-r:0 constitute notice of entry under CPLR Section 2220, and the plaintiff is not reliev om tl) applicable provisions of that rule regarding service of notice of entry. So Ordered. - 5 DATED: December 16, 2019 Saratoga Springs,New York ENTERED Craig A. Hayner HON. THOMAS D NOL , Supreme Court Jus 'ce Saratoga County Clerk 8