Forbearance of Divorce as Valid Consideration, Yet Oral Promises to Convey Realty Remain Unenforceable Against Subsequent Purchasers Absent Writing or “Unequivocally Referable” Part Performance — Makransky v. Makransky (2d Dep’t 2025)

Introduction

Makransky v. Makransky, 2025 NY Slip Op 05678 (App Div, 2d Dept, Oct. 15, 2025), sits at the intersection of family law and real property doctrine. The plaintiff, Gina Makransky, alleged that, upon learning shortly after her 2010 marriage that her husband, William, had a prior conviction for aggravated sexual assault on a minor, she intended to seek a divorce. She claims that William’s mother, Mary Elizabeth Makransky, induced her to forbear divorce by an oral promise: Gina could reside at Mary’s real property and, eventually, Mary would transfer title to Gina. William died in 2020. In 2022, Mary sold the property to purchasers George Macdonald and Quiogue Property Management, LLC.

Gina sued, asserting, among other things, breach of contract, a claim to invalidate the sale and enforce the oral agreement, unjust enrichment, quantum meruit, and imposition of a constructive trust. The purchasers moved to dismiss under CPLR 3211(a). The Supreme Court (Suffolk County) granted dismissal; upon reargument, it adhered to its decision. Gina appealed those rulings as to the buyers.

The Appellate Division affirmed the dismissal as to the buyers, but clarified an important legal point: contrary to the Supreme Court’s determination, forbearance of a spouse’s right to seek a divorce is valid consideration and is not against New York public policy. Even so, the claims against the subsequent purchasers failed under the statute of frauds and related equitable doctrines.

Summary of the Opinion

The Second Department:

• Dismissed the appeal from the April 14, 2023 order as superseded by the July 10, 2023 order issued upon reargument.
• Affirmed the July 10, 2023 order insofar as appealed from, thereby sustaining dismissal of all claims against the buyers under CPLR 3211(a).

On the merits, the Court held:

• Consideration: The alleged oral agreement did not fail for lack of consideration; a spouse’s promise to refrain from exercising the legal right to seek divorce constitutes valid consideration and is not against public policy, aligning New York authority with numerous jurisdictions recognizing similar arrangements.
• Statute of Frauds: The breach-of-contract claim against the buyers was barred because an agreement to convey real property must be in writing. The plaintiff failed to allege “unequivocally referable” part performance sufficient to take the oral promise outside the statute of frauds.
• Equitable Estoppel: Not available against the buyers because there were no allegations of their misrepresentation, concealment, intent to induce reliance, or knowledge of true facts, and courts apply estoppel with great caution in realty matters.
• Unjust Enrichment and Quantum Meruit: Dismissed as the connection between plaintiff and buyers was too attenuated; the plaintiff did not confer a benefit on the buyers or expect compensation from them.
• Constructive Trust: Insufficiently pleaded against the buyers because the plaintiff neither alleged a confidential/fiduciary relationship with them nor a prior interest in the property that she parted with in reliance on a promise from them.

The Court also noted that unsworn memoranda of law do not supply evidence (rejecting a timeliness argument presented in that form) and awarded one bill of costs to the buyers.

Analysis

Precedents Cited and Their Role

• Pleading Standards on a Motion to Dismiss
  • Jesberger v CVS Health Solutions, LLC, 222 AD3d 849: Reaffirms that on CPLR 3211(a)(7) motions, courts liberally construe the complaint, accept allegations as true, and give plaintiffs every favorable inference.
  • Templeton v Roach, 228 AD3d 796: Same core pleading principles.
  • Nonnon v City of New York, 9 NY3d 825: Affidavits may be considered but are typically used to cure pleading defects, not to provide evidentiary support for otherwise adequately pleaded claims.
• Consideration: Forbearance of Divorce
  • Morrow v Vibration Mountings & Controls, Inc., 223 AD3d 736; U.S. Bank N.A. v Reddy, 220 AD3d 967: Forbearance of a legal right constitutes consideration.
  • Rodgers v Rodgers, 229 NY 255; Lindsley v Lindsley, 54 AD2d 664; Matter of Hart, 31 AD2d 548: New York precedents endorsing forbearance of divorce as valid consideration and not contrary to public policy.
  • Cross-jurisdictional support: Allen v Allen (VA), Lloyd v Niceta (MD), Young v Cockman (MD), Matter of Marriage of Ellinwood (OR), Dale v Dale (CA), In re Marriage of Tabassum & Younis (IL), Phillips v Meyers (IL), Polson v Stewart (MA), Duffy v White (MI), McKay v McKay (Tex), Moayon v Moayon (KY), Matter of Galbreath (Bankr. M.D. Ga.). Contra: Fisher v Koontz (IA). These citations situate New York within a broad consensus that such agreements can be enforceable.
  • Whitmore v Whitmore, 8 AD3d 371 (cf.): Indicates limits or different factual contexts where such consideration may not carry the day.
• Statute of Frauds and Part Performance
  • Toobian v Golzad, 193 AD3d 778; S & G Golden Estates, LLC v New York Golf Enters., Inc., 216 AD3d 831: Conveyances of real property require a writing under the statute of frauds.
  • Barretti v Detore, 95 AD3d 803; Matter of Zelouf, 183 AD3d 900; Roman Catholic Church of the Epiphany v City of New York, 183 AD3d 775: Part performance must be “unequivocally referable” to the alleged agreement—conduct explicable only by the agreement—to defeat the statute of frauds.
• Equitable Estoppel in Realty
  • Wallace v BSD-M Realty, LLC, 142 AD3d 701; First Union Natl. Bank v Tecklenburg, 2 AD3d 575; Lake Valhalla Civic Assn., Inc. v BMR Funding, LLC, 194 AD3d 803; Weiss v Halperin, 149 AD3d 1143; Huggins v Castle Estates, 36 NY2d 427: Define estoppel elements (false representation or concealment, intent, knowledge, and justifiable reliance) and caution against liberal application in real estate disputes.
• Unjust Enrichment and Quantum Meruit
  • Jetro Holdings, LLC v MasterCard Intl., Inc., 166 AD3d 594; Travelsavers Enters., Inc. v Analog Analytics, Inc., 149 AD3d 1003: Elements of unjust enrichment.
  • Nasca v Greene, 216 AD3d 648; Beaman v Awaye Realty Mgt., LLC, 176 AD3d 1025: No privity is required, but the relationship cannot be too attenuated; plaintiff must have conferred a benefit the defendant retains without compensation.
  • Home Constr. Corp. v Beaury, 149 AD3d 699; Karimian v Time Equities, Inc., 164 AD3d 486: Illustrate what constitutes conferral and acceptance of a benefit and the quantum meruit framework.
• Constructive Trust
  • Harounian v Harounian, 198 AD3d 734; Edwards v Walsh, 169 AD3d 865; Bontecou v Goldman, 103 AD2d 732; Schwab v Denton, 141 AD2d 714: The “usual elements” include a confidential/fiduciary relationship, a promise, transfer in reliance, and unjust enrichment; no constructive trust lies where the claimant had no pre-existing interest in the property that was surrendered in reliance.
• Procedural Note on Evidence
  • Law Off. of Cary Scott Goldinger, P.C. v Deluca, 219 AD3d 598; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482: Unsworn memoranda of law do not constitute evidence and are not a proper vehicle for factual assertions such as timeliness arguments.

Legal Reasoning Explained

1. Pleading lens under CPLR 3211(a)

   The Court applied the liberal pleading standard, accepting Gina’s allegations as true for purposes of the motion. Yet, even under this forgiving lens, the claims could not overcome the statute of frauds and equitable requirements vis-à-vis the buyers.

2. Consideration and public policy

   The Appellate Division corrected the Supreme Court’s conclusion that the alleged oral agreement lacked consideration. New York law has long recognized that forbearance of a legal right—here, the right to seek divorce—is valid consideration and not contrary to public policy. The Court underscored this with both New York and nationwide authority. Gina’s allegation that she continued the marriage based on Mary’s promise sufficed to plead consideration.

3. Statute of Frauds: writing required for realty

   Notwithstanding valid consideration, the breach-of-contract claim against the buyers was barred. New York’s statute of frauds requires a signed writing to enforce an agreement for the conveyance of real property. The “part performance” exception demands conduct “unequivocally referable” to the contract—that is, conduct explainable only by the alleged agreement. The Court found the complaint and opposing submissions failed to allege such acts. The plaintiff’s continued marriage or residence at the property (as pleaded) can be explained by reasons other than an enforceable contract to transfer title and thus do not satisfy the stringent “unequivocally referable” standard.

4. Equitable estoppel against purchasers rejected

   Estoppel requires misrepresentation or concealment by the party to be estopped, intent that the other rely, knowledge of the true facts, and actual, justifiable reliance resulting in detriment. The Court emphasized the doctrine’s cautious application in real property. Gina did not allege the buyers said or concealed anything, intended reliance, or knew material facts unknown to her. Nor did she allege reliance on any conduct by the buyers. Estoppel therefore could not circumvent the statute of frauds.

5. No quasi-contract recovery against the buyers

   Unjust enrichment and quantum meruit require that the plaintiff conferred a benefit on the defendant with an expectation of compensation, which the defendant accepted and retained unjustly. The relationship between Gina and the buyers was “too attenuated”; there was no alleged benefit she conferred on them, nor any acceptance of services or expectation of compensation from them. These quasi-contract claims were properly dismissed.

6. Constructive trust elements not met

   A constructive trust requires a confidential or fiduciary relationship, a promise, a transfer in reliance, and unjust enrichment. To show “transfer in reliance,” the claimant must have parted with a pre-existing interest in the property because of the promise. Gina neither alleged a confidential relationship with the buyers nor that she surrendered a prior interest in the property in reliance on any promise by the buyers. Consequently, constructive trust could not be imposed against them.

7. Procedural housekeeping

   The appeal from the April 14 order was dismissed as superseded by the July 10 reargument order. The Court declined to consider timeliness allegations contained only in an unsworn memorandum of law. One bill of costs was awarded to the buyers.

Impact and Practical Implications

Makransky delivers a dual message with significant doctrinal and practical consequences:

• Clarification on consideration in marital contexts. The opinion cements that, in New York, a spouse’s decision to forego divorce proceedings can be valid consideration for a promise—even a promise to transfer real property. This reinforces earlier authority and aligns New York with a broad national consensus, dispelling any suggestion that such agreements are categorically void as against public policy.
• But formality and evidence rules still govern real property. Even where consideration is sound, agreements to convey realty must be written. The “unequivocally referable” part performance exception remains narrow. Everyday or plausibly alternative explanations for conduct—continued marriage, occupancy under a family arrangement, or general contributions to a household—will rarely satisfy the test.
• Limited reach against subsequent purchasers. Absent allegations of deception by buyers or that the claimant conferred a benefit on them or had a pre-existing property interest parted with in reliance, equitable remedies (estoppel, unjust enrichment, constructive trust) will not bridge the statute-of-frauds gap. Purchasers not implicated in wrongdoing are insulated from oral, intra-family promises to convey real property.
• Litigation posture matters. On a motion to dismiss, plaintiffs must plead with specificity the acts of part performance and the elements of any equitable theory. Affidavits cannot be used simply to bolster already sufficient allegations; and unsworn memoranda are not evidence.
• Practice pointers.
  • Reduce any promise to convey real property to a signed writing. If the arrangement involves delay (e.g., “eventual transfer”), incorporate clear conditions and timelines.
  • If relying on part performance, document acts that are explainable only by the alleged agreement (e.g., payments designated as purchase money, exclusive possession plus substantial, documented improvements made because of the promise).
  • Where third-party purchasers are in view, consider recording interests or taking steps that provide notice—equitable claims grow markedly harder once title is transferred to parties not alleged to have engaged in wrongdoing.
  • For constructive trust claims, ensure there is a traceable transfer of a pre-existing property interest given in reliance on a promise.

Complex Concepts Simplified

• Consideration: The “price” of the promise. If you give up a legal right (like the right to file for divorce), that can count as consideration making the other side’s promise enforceable.
• Statute of Frauds: Certain contracts (including those to sell or convey real property) must be in writing to be enforceable. Oral promises to deed real estate typically cannot be enforced.
• Part Performance (Unequivocally Referable): A narrow exception to the statute of frauds. The plaintiff must show actions that make sense only if the oral contract existed. If the actions could be explained by something else (family generosity, permissive occupancy), the exception does not apply.
• Equitable Estoppel: Prevents someone from denying a claim if they misrepresented or hid facts, intended the other person to rely, knew the truth, and the other person reasonably relied to their detriment. Courts are especially cautious in using this to alter real estate rights.
• Unjust Enrichment / Quantum Meruit: Fairness-based claims to recover benefits unjustly kept by another, or payment for services provided with an expectation of compensation. These claims usually require a direct benefit conferred on the defendant, not just an indirect or attenuated connection.
• Constructive Trust: An equitable tool to prevent unjust enrichment by treating someone holding property as if they hold it in trust for another. Typically requires a special relationship, a promise, a transfer of an existing property interest in reliance, and resulting unjust enrichment.
• CPLR 3211(a) Motion to Dismiss: A procedural device to end a case early if, even assuming the plaintiff’s facts are true, the complaint does not state a legally recognized claim.
• Order “superseded” upon reargument: When a court reconsiders its ruling and issues a new order, appeals often must be taken from the new order; the earlier one can no longer be the basis of an appeal.

Conclusion

Makransky’s most salient doctrinal contribution is its express reaffirmation that a spouse’s forbearance of the right to seek divorce constitutes valid consideration and is not contrary to New York public policy. That clarification matters for intra-family agreements touching property or support. Yet the case simultaneously underscores a countervailing reality: real property law’s formality and the statute of frauds retain primacy. Without a writing—or without tightly pleaded, “unequivocally referable” part performance—oral promises to convey land will not be enforced, particularly against subsequent purchasers who are not alleged to have engaged in misrepresentation or misconduct.

The opinion also delineates the limits of equitable doctrines in this context: estoppel demands specific misrepresentations and reliance; unjust enrichment and quantum meruit require a direct benefit conferred on the defendant; and constructive trust generally requires surrender of a pre-existing property interest in reliance on a promise. Plaintiffs seeking to convert intra-family understandings into legally enforceable property rights must attend to these requirements at the outset, ideally by memorializing agreements in a signed writing. As a result, Makransky will likely be cited both for its clear statement on consideration in marital forbearance agreements and for its rigorous application of the statute of frauds and equitable pleading standards in disputes involving subsequent real property purchasers.