Introduction

This appeal arises from a multi-claim dispute between Adam Blank and members of the Acker family over an alleged oral promise to convey a house and over allegedly defamatory statements about Blank’s management of a family trust. After the Supreme Court, Nassau County, denied the defendants’ pre-answer motion to dismiss, the Second Department reversed and dismissed the complaint in its entirety.

The opinion squarely addresses recurring issues at the intersection of real property, trusts and estates, contract, and defamation law, including:

• Whether emails and provisions in a revocable will can satisfy New York’s Statute of Frauds and EPTL 13-2.1 for an agreement to convey or make a testamentary disposition of real property.
• Whether alleged part performance and promissory estoppel can overcome the Statute of Frauds in this context.
• What qualifies as a confidential/fiduciary relationship for purposes of a constructive trust where parties are sophisticated business actors.
• Whether a lessee can seek unjust enrichment for improvements where the lease allocates ownership of improvements to the landlord upon termination.
• When criticisms of a person’s professional performance constitute nonactionable opinion rather than defamatory factual assertions.

Parties: Plaintiff-respondent Adam Blank, long affiliated with the Acker family as an executive, attorney, and trustee; defendants-appellants David Acker and Spencer Acker. Central to the case is a house that Harold Acker (David’s father) allegedly promised to give to Blank and that David later allegedly agreed to bequeath.

Summary of the Opinion

The Second Department reversed the trial court and granted the defendants’ CPLR 3211(a) motion to dismiss all seven causes of action, with costs:

• Specific performance, declaration of equitable ownership, and breach of oral agreement (Counts 1, 4, 5): Barred by the Statute of Frauds. The emails and provisions in David’s revocable wills did not constitute a sufficient writing; part performance was not “unequivocally referable” to the alleged contract.
• Promissory estoppel (Count 2): Dismissed because the complaint did not plausibly allege the “unconscionable injury” required to estop reliance on the Statute of Frauds.
• Constructive trust (Count 3): Dismissed for failure to plead a qualifying confidential or fiduciary relationship beyond an arm’s-length relationship among sophisticated business people.
• Unjust enrichment (Count 6): Dismissed because the leases governed improvements and provided they revert to the landlord, precluding quasi-contract recovery.
• Defamation per se (Count 7): Dismissed because the statements about Blank’s trust management were subjective evaluations lacking precise, verifiable meaning and thus were nonactionable opinion.

Analysis

1) Precedents Cited and Their Influence

a. Statute of Frauds and Agreements to Make a Testamentary Disposition

• General Obligations Law § 5-703(3) and CPLR 3211(a)(5): The Statute of Frauds bars enforcement of an oral contract to convey an interest in real property absent a sufficient signed writing. The Court invoked this to bar Blank’s contract-based claims.
• EPTL 13-2.1(a)(2): An agreement to make a testamentary disposition must itself be in writing and signed by the party to be charged. The Court emphasized that a will—which is inherently revocable—is not an enforceable contract to make a testamentary disposition (citing Matter of Hennel, 29 NY3d 487, 493; Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 92).
• Writings need not be a single document (citing Matter of Urdang, 304 AD2d 586), but must collectively contain all essential terms (citing Ehrenreich v Israel, 188 AD3d 818, 819–820; Kelly v P & G Ventures 1, LLC, 148 AD3d 1002, 1003–1004; Hopwood v Infinity Contr. Servs. Corp., 230 AD3d 570, 571). The Court found the emails lacking essential terms and therefore insufficient.
• Part performance: An exception requires conduct “unequivocally referable” to the alleged contract (citing Barretti v Detore, 95 AD3d 803, 806; Matter of Zelouf, 183 AD3d 900, 902). The Court held Blank’s improvements, made while he occupied the house under leases, were not unequivocally referable because such actions are consistent with being a tenant, especially where leases expressly address improvements.

b. Promissory Estoppel and “Unconscionable Injury”

• Matter of Hennel, 29 NY3d at 494, allows promissory estoppel to overcome the Statute of Frauds only in rare cases where nonenforcement would cause an “unconscionable injury,” understood as an injury “beyond that which flows naturally from the non-performance of the unenforceable agreement” (quoting Merex A.G. v Fairchild Weston Sys., Inc., 29 F3d 821, 826 [2d Cir], and applied in Bent v St. John’s Univ., N.Y., 189 AD3d 973, 975–976).
• Relying on Del Vecchio v Gangi, 225 AD3d 666, 671, the Court held the complaint failed to plead such an extraordinary injury.

c. Constructive Trust

• Guided by Sharp v Kosmalski, 40 NY2d 119, 121, and subsequent cases (Fakiris v Fakiris, 192 AD3d 993; Daniels v Ruggiero, 230 AD3d 563), the Court reiterated the usual four elements: (1) confidential/fiduciary relationship, (2) promise, (3) transfer in reliance, and (4) unjust enrichment.
• Critically, a fiduciary relationship arises when one party reasonably relies on the other’s superior knowledge—not in “an arm’s-length business transaction involving sophisticated business people” (quoting Saul v Cahan, 153 AD3d 947, 949; see also Guarino v North Country Mtge. Banking Corp., 79 AD3d 805, 807; Feldman v Byrne, 210 AD3d 646, 650). Blank’s roles (executive, attorney, trustee) did not establish a fiduciary relationship with David sufficient to impose a constructive trust.

d. Unjust Enrichment

• Under Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182, a plaintiff must show enrichment at plaintiff’s expense and that equity and good conscience require restitution. But quasi-contract remedies are “ordinarily precluded” where a valid, enforceable written contract governs the subject matter (citing Barker v Time Warner Cable, Inc., 83 AD3d 750, 752; Federico v Brancato, 144 AD3d 965, 967; Catlyn & Derzee, Inc. v Amedore Land Devs., LLC, 166 AD3d 1137, 1140).
• The leases explicitly provided that improvements revert to the landlord at termination, foreclosing an unjust enrichment claim for their value.

e. Defamation

• The Court applied the opinion/fact framework: only factual statements, capable of being proven true or false, can be defamatory (e.g., Gross v New York Times Co., 82 NY2d 146, 152–153; Mann v Abel, 10 NY3d 271, 276; Silverman v Daily News, L.P., 129 AD3d 1054, 1055; VIP Pet Grooming Studio, Inc. v Sproule, 224 AD3d 78, 91).
• Factors include precision of language, verifiability, and contextual signals of opinion (e.g., Crime Victims Ctr., Inc. v Logue, 181 AD3d 556, 557; Levy v Nissani, 179 AD3d 656, 658–659). Here, statements about Blank’s trust management were subjective evaluations lacking precise, provably true/false content, and thus nonactionable opinion (citing Nofal v Yousef, 228 AD3d 772, 774; Galanova v Safir, 138 AD3d 686, 687).

2) The Court’s Legal Reasoning

The Court’s analysis proceeds in a structured sequence keyed to the pleaded causes of action:

• Contract-based claims barred by governing statutes: The alleged agreements concerned a conveyance or testamentary disposition of real property. Under GOL § 5-703(3) and EPTL 13-2.1(a)(2), any such agreement must be in a signed writing stating essential terms. The 2016 emails and provisions in David’s revocable wills were inadequate: the emails did not capture all essential terms, and the wills, being revocable, cannot themselves constitute enforceable contracts to bequeath. The asserted improvements and long-term occupancy were readily explainable by Blank’s status as a lessee and leases that addressed improvements, making them not “unequivocally referable” to an ownership agreement.
• Equitable workarounds confined by demanding thresholds: Promissory estoppel can sometimes overcome the Statute of Frauds, but only in rare cases where nonenforcement would produce an “unconscionable injury.” The Court concluded Blank’s allegations—even crediting investments in the house—fell short, particularly given the leases’ express allocation of improvements to the landlord. Similarly, the constructive trust claim faltered because the relationship between Blank and David, as pled, did not transcend arm’s-length dealings among sophisticated actors to a fiduciary relationship where Blank relied on David’s superior expertise.
• Quasi-contract foreclosed by a governing lease: Because the leases specifically addressed improvements and their reversion, unjust enrichment was unavailable as a matter of law for the same subject matter.
• Defamation claim stymied by the opinion doctrine: The statements at issue were evaluative characterizations of professional performance—not concrete assertions of fact—and therefore were not actionable regardless of their negative tone. The Court did not need to reach per se categories because the opinion/fact threshold was not met.

3) Impact and Practical Implications

a. Real Property and Estate Planning

• No “workarounds” via emails or wills: This decision underscores that informal writings (emails) and references in a revocable will will not satisfy either the Statute of Frauds or EPTL 13-2.1 for promises to convey or devise real property. Parties seeking to enforce such promises must secure a separate, signed writing containing essential terms.
• Part performance remains narrow: Occupancy and improvements by a tenant—even costly ones—will rarely be “unequivocally referable” to an ownership promise, especially where a lease covers improvements. Plaintiffs should expect close scrutiny of whether their conduct is explainable by other relationships (tenancy, employment, family generosity) before part performance will defeat the Statute of Frauds.

b. Equitable Remedies

• Promissory estoppel against the Statute of Frauds is exceptional: Allegations of financial outlay and reliance must clear the high bar of “unconscionable injury,” meaning something qualitatively beyond expectation or reliance damages naturally flowing from nonperformance. The presence of governing leases or documents that allocate risks and benefits undermines claims of unconscionability.
• Constructive trust requires more than closeness or professional association: Even where parties are deeply intertwined through employment, legal representation, or trust administration, courts will require facts showing reliance on the other party’s superior expertise or knowledge in a way that surpasses ordinary, arm’s-length business dealings. Sophistication of the parties cuts against finding a confidential relationship.

c. Contracts and Quasi-Contracts

• Lease provisions control improvements: Where a lease states that improvements revert to the landlord at termination, tenants cannot recast their claims as unjust enrichment to recover improvement value. This reinforces the rule that quasi-contract cannot disrupt a bargained-for allocation of rights in an express contract.

d. Defamation in Business and Family Governance Disputes

• Opinion vs. fact is outcome-determinative: Subjective performance critiques—such as generalized assessments of management quality—are paradigmatic opinion and not actionable, even when they implicate a person’s professional reputation. Plaintiffs must identify precise, verifiable statements of fact to survive dismissal.
• Per se labels do not bypass the opinion barrier: Even if a statement relates to one’s profession, it must still be a factual assertion capable of proof or disproof to be actionable as defamation per se.

e. Litigation Posture

• Early dispositive motions are effective: The Court’s reliance on documentary evidence (leases) and statutory bars shows that CPLR 3211(a) remains a potent mechanism to terminate cases grounded in oral promises concerning real property or where statements are nonactionable opinion.

Complex Concepts Simplified

• Statute of Frauds (GOL § 5-703): New York requires a signed writing to enforce a contract to convey an interest in real property. Without it, the contract is unenforceable unless a narrow “part performance” exception applies.
• EPTL 13-2.1(a)(2): A promise to make (or not revoke) a will, or otherwise make a testamentary disposition, must itself be in a signed writing. A will—even if it mentions the contemplated gift—is revocable and not the contract.
• Part Performance (“unequivocally referable”): The actions taken in reliance must be explicable only by the existence of the specific contract alleged. If the conduct can be explained by another relationship (e.g., being a tenant), the exception does not apply.
• Promissory Estoppel “Unconscionable Injury”: An extraordinarily high standard. The injury must be so severe and unjust that it would be unconscionable to permit the promisor to invoke the Statute of Frauds—something beyond typical reliance or expectation loss.
• Constructive Trust: An equitable remedy imposed to prevent unjust enrichment when property is acquired under circumstances where the holder cannot in good conscience keep it. It commonly requires a confidential relationship and a promise inducing a transfer.
• Unjust Enrichment vs. Express Contract: Equity will not override an express, valid contract that covers the same subject matter. If the contract allocates a benefit (e.g., improvements revert to landlord), unjust enrichment will not undo that allocation.
• Defamation—Opinion vs. Fact: Only statements of fact can be defamatory because only facts can be proven true or false. Opinions—subjective evaluations, rhetorical hyperbole—are not actionable, even if unkind or damaging.

Conclusion

Blank v. Acker reaffirms bright-line guardrails in New York law that limit the enforcement of oral or informal promises involving real property and testamentary dispositions. The Second Department held that emails and provisions in revocable wills do not satisfy either the Statute of Frauds or EPTL 13-2.1 absent a separate signed agreement capturing the essential terms. The Court sharply confined equitable workarounds: part performance must be unequivocally referable to the alleged contract, promissory estoppel requires truly unconscionable injury, and constructive trust demands a qualifying confidential relationship not present in arm’s-length dealings among sophisticated actors. It likewise enforced the primacy of express leases in foreclosing unjust enrichment claims regarding improvements, and it applied the opinion doctrine to dismiss defamation claims premised on subjective criticism of professional performance.

Key takeaways: parties must reduce real-property and testamentary promises to a compliant writing; tenants should expect lease terms governing improvements to control; and litigants in business or family governance disputes should recognize that evaluative critiques often constitute nonactionable opinion. The decision provides a comprehensive, cross-disciplinary reminder that statutory formalities and clear contractual allocations remain decisive at the pleading stage and beyond.