Ordered that the judgment is affirmed insofar as appealed from, with costs.
The fourth cause of action asserted in the plaintiff's amended verified complaint alleged that the parties entered into an agreement whereby the defendant promised to convey a one-half interest in his residential real property to the plaintiff in contemplation of their impending marriage. This cause of action further alleged a breach of the agreement by the defendant and requested specific performance of the contract and the imposition of a constructive trust over the subject property. The trial court dismissed the constructive trust claim, but awarded damages to the plaintiff in lieu of specific performance, concluding that the oral contract was valid and binding. We agree, and therefore affirm.
Initially, although the oral agreement falls within the Statute of Frauds (see, General Obligations Law § 5-701 [a] [3]), the defendant failed to plead the statute as an affirmative defense (see, CPLR 3018 [b]) or to otherwise timely raise the issue; hence, he is deemed to have waived it (see, e.g., Schaffer Stores Co. v Grand Union Co., 84 A.D.2d 614, appeal dismissed 56 N.Y.2d 570; Chester Natl. Bank v Rondout Mar., 46 A.D.2d 985, lv denied 37 N.Y.2d 706). In this regard, we find unpersuasive the defendant's contention that he was not required to assert the defense because the plaintiff sought the imposition of a constructive trust. While it is clear that the Statute of Frauds is not a defense to the constructive trust claim (see, Ozkahveci v Ozkahveci, 91 A.D.2d 656; Crane v Crane, 77 A.D.2d 858), we conclude that, in view of the allegations underlying the distinct claim for specific performance of the oral contract, the defendant was obligated to interpose the statute as an affirmative defense. Therefore, the trial court properly determined that his failure to do so was fatal.
Similarly unavailing is the defendant's contention that the plaintiff's contract claim was barred by the terms of a separate written antenuptial agreement of the parties. The written agreement contains no provision which can reasonably be interpreted to preclude the plaintiff's recovery upon the oral agreement, nor are the terms of the two contracts conflicting. Thus, the trial court's award of damages to the plaintiff for breach of the oral agreement was proper. Mollen, P.J., Thompson, Eiber and Spatt, JJ., concur.