On October 23, 2018, the First Department again ruled in favor of plaintiff Peter Castellotti in his on-going litigation against his sister, Lisa Free. In its memorandum opinion (2018 NY Slip Op 07045), the Court vacated the Order of the Supreme Court entered on June 6, 2017 which sua sponte limited plaintiff's recovery under his promissory estoppel claim to the amount plaintiff paid for his mother's estate tax, and dismissed plaintiff's claim for a constructive trust.

The Appellate Division, citing the Court of Appeals in Matter of Hennel, 29 NY3d 487, 494 (2017), reiterated that “where the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds.”

This ruling means that if Mr. Castellotti can demonstrate that he has suffered an unconscionable injury at trial, the oral promise between him and his sister can be enforced, allowing him to recover his half of the family’s business, John’s Pizzeria, as well as half of all the profits generated by his mother’s assets since her death in 2004.

Peter Castellotti was represented in the Appellate Division by J. Kaplan & Associates attorneys Jeffrey Kaplan and Joseph DePalma. The Appellate Division’s decision is available at http://nycourts.gov/reporter/3dseries/2018/2018_07045.htm.