In re Estate of Chakine — 273 A.D.2d 18

Majority

p. 18

In the Matter of the Estate of Bertha Chakine, Deceased. Alan Zelnick, as Executor, Respondent; Paul Lochak, Appellant.

[709 NYS2d 400]

Order, Surrogate’s Court, New York County (Renee Roth, S.), entered on or about March 11, 1999, which granted the executor’s petition to disallow the subject claim and dismissed claimant’s cross petition to enforce said claim, unanimously affirmed, with costs.

The Surrogate correctly found that the alleged oral agreement for the making of a testamentary disposition was unenforceable, since an agreement to make a testamentary disposition of any kind must be in writing and signed by the party to be charged (EPTL 13-2.1 [a] [2]; Dombrowski v Somers, 41 NY2d 858 , 859).

The Surrogate also properly found that claimant failed to establish grounds for imposition of a constructive trust, since there was no evidence that he had an interest in the property

p. 19

at the time it was transferred (see, Matter of Wells, 36 AD2d 471 ,.474, affd 29 NY2d 931 ), or that there existed a confidential relationship between the parties to the purported agreement (see, Sharp v Kosmalski, 40 NY2d 119 ), or that the alleged promise was sufficiently specific to be enforceable (see, Martin Delicatessen v Schumacher, 52 NY2d 105 ), or that the transferor relied on decedent’s alleged promise to bequeath the subject securities to claimant when he transferred the securities to the decedent (see, Sharp v Kosmalski, supra).

We have considered claimant’s remaining contentions and find them unavailing. Concur — Rosenberger, J. P., Nardelli, Andrias, Saxe and Buckley, JJ.

Cases cited

In re the Accounting of the Marine Midland Trust Co. 36 AD2d 471 N.Y. App. Div. 1971-05-20 p. 19
In re the Accounting of the Marine Midland Trust Co. 29 NY2d 931 N.Y. 1972-01-13 p. 19
Sharp v. Kosmalski 40 NY2d 119 N.Y. 1976-06-15 p. 19
Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher 52 NY2d 105 N.Y. 1981-01-20 p. 19