Lawyers Manual - Unified Court System

418 Sharon Stapel
whether a partnership existed. A court will look at the relevant testimony,
conduct, and documentary evidence. Hanlon v Melfi, 102 Misc 2d 170
(Sup Ct, NY County, 1979). However, courts have held that oral contracts
are unenforceable under the statute of frauds. Robin v Cook, NYLJ, Oct 30,
1990, col. 1, p. 21 (Sup Ct, NY County).
40. A court may impose a constructive trust as to property to prevent one party
from being unjustly enriched. Generally, such a trust may be imposed upon
a showing of the following four factors: (1) a confidential or fiduciary
relationship; (2) a promise or agreement, express or implied; (3) a transfer
in reliance on such promise or agreement; and (4) unjust enrichment. Thus,
in Minieri v Knittel, the Supreme Court of New York County indicated that
a constructive trust might be appropriate in the case where one party to a
lesbian couple transferred nominal and joint title to her real and personal
assets to her partner in reliance on an oral agreement between them that it
was being held for the transferor and would be conveyed to the transferor
upon request. 188 Misc 2d 298 (Sup Ct, NY County, 2001). Importantly, in
Mineri, the Supreme Court also noted that the above enumerated factors
are not necessarily determinative for the imposition of a joint trust.
41. Conversion is defined as an act or series of acts of willful interference,
without lawful justification, with an item of property in a manner
inconsistent with another’s right, whereby that other person is deprived of
the use and possession of the property. Black’s Law Dictionary, 8th ed.
(2004). Thus it would include such acts as taking possession of a partner’s
property, refusing to give up on demand, disposing of the goods to a third
person, or destroying them. In Tucker v Evanczik, the Fourth Department
determined that by the act of fraudulently signing a partner’s name on a
vehicle registration and then selling the vehicle to a third party constituted
conversion. 78 AD2d 993 (4th Dept 1980).
42. Replevin constitutes an action for the repossession of personal property
wrongfully taken or detained by the defendant, whereby the plaintiff gives
security for and holds the property until the court decides who owns it.
Black’s Law Dictionary, 8th Ed. (2004). Generally, replevin is applicable
only when the property or thing is capable of specific identification or
certain designation. Replevin may be employed to permit the recovery of
chattels of a wide variety of goods including motor vehicles and computer
equipment. Although rarely used, replevin may be a powerful weapon
when an abuser wrongly holds property belonging to the victim.