
    [739 NYS2d 877]
    Josephine Valente, Appellant, v Jamie A. Valente, Individually and as Distributee of the Estate of Joseph A. Valente, Deceased, Respondent.
    Supreme Court, Appellate Term, Second Department,
    January 16, 2002
    APPEARANCES OF COUNSEL
    
      John S. Pokalsky, New York City, for appellant. No appearance for respondent.
   OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

At trial, plaintiff testified that she gave decedent, her son, and defendant, her daughter-in-law, the sum of $24,500 as a gift towards the purchase of a house. Plaintiff also testified that the money was given as a gift with the understanding that she would live at said premises. After the house was purchased, plaintiff’s son died in the house. Plaintiff testified that due to the tragic death, she could not and would not move into the house. Defendant thereafter sold the house. Plaintiff commenced the instant action to recover the sum of $24,500 on several theories of recovery including unjust enrichment. At the close of plaintiffs case, the court dismissed the action. We affirm.

“A person may be deemed to be unjustly enriched if he (or she) has received a benefit, the retention of which would be unjust (Restatement, Restitution, § 1, Comment a). A conclusion that one has been unjustly enriched is essentially a legal inference drawn from the circumstances surrounding the transfer of property and the relationship of the parties. It is a conclusion reached through the application of principles of equity” (Sharp v Kosmalski, 40 NY2d 119, 123).

In the instant case, plaintiffs testimony established that the transfer of funds was a gift for the purpose of purchasing a house with the understanding that plaintiff would live there. It is uncontroverted that said funds were in fact utilized towards the purchase of the house in compliance with the condition attached to the gift. Assuming arguendo that plaintiff’s gift can also be deemed conditioned upon plaintiff moving into the house, it was neither alleged nor proved that defendant defeated the fulfillment of plaintiffs expectation that she would live there. Rather, plaintiff herself confirmed at several junctures at trial that she would not live at the house, and that this was communicated to defendant. Under the circumstances, plaintiffs proof was insufficient to establish her claim that the retention of the monies constituted unjust enrichment. Accordingly, the dismissal of the complaint at the close of plaintiffs case was proper.

Rios, J.,

dissents and votes to reverse the judgment in the following memorandum. A loving mother of advanced age in ill health donated to her son and his wife $24,500 to be used to purchase a new home. It was understood by all that the donor would reside with the recipients of the gift and their children once the house was purchased.

Within one week of the closing of title, and before anyone took occupancy, the donor’s son committed suicide inside the newly acquired property. Stunned by the death, neither the donor nor her son’s widow took occupancy of the premises. Thereafter, the widow sold the property and refused to return the $24,500 gift.

I find that the tenets of equity discussed in the majority opinion compel reversal of the dismissal of the complaint. The 76-year-old plaintiff’s testimony established that the transfer of funds by her was a gift for the purpose of the purchase of a house that had a stairlift to accommodate her disabilities, so that she could reside there with her son, daughter-in-law and grandchildren. The plaintiff participated in selecting a suitable house and essentially had a veto power with respect to the choice of the premises. After the plaintiff’s son committed suicide, the defendant sold the house, thereby defeating the plaintiff’s original expectation that she would reside with family members in a house that was commodious to her physical limitations.

Whether the plaintiff had an opportunity to make a reasoned decision relinquishing her right to reside in the house was an issue for the jury. It was only at the funeral of her son that the plaintiff was asked by the defendant to make a choice. The plaintiff testified that the defendant did not advise her in advance of the sale and that she only learned of that event “through word of mouth.”

In view of the testimony adduced at the trial, a question of fact was presented for resolution by the jury as to whether the proof adequately established the plaintiff’s claim that the defendant’s retention of the monies constituted unjust enrichment.

In light of the foregoing, the judgment should be reversed and a new trial granted.

Scholnick, P.J., and Aronin, J., concur; Rios, J., dissents in a separate memorandum.  