The decision thus leaves intact the jury’s determination that, in equity, the beneficial ownership of the Saratoga and Christian Court properties belongs entirely to Iris and Patty.

IV. Legal Framework and Key Concepts

A. Constructive Trust

New York courts impose a constructive trust when it would be inequitable to allow the holder of legal title to retain beneficial ownership. The classic four elements (originating in Sharp v Kosmalski, 40 NY2d 119 [1976]) are:

1. A confidential or fiduciary relationship,
2. A promise (express or implied),
3. A transfer made in reliance on that promise, and
4. Unjust enrichment of the transferee if the promise is not fulfilled.

However, as the court stresses (citing cases like Morgan v Kilroy, Baker v Harrison, and Johnson v Lih), these elements are not rigid requirements but guidelines. Courts may:

• Infer promises from the circumstances, and
• Treat contributions of money, time, and effort – not only direct conveyances – as satisfying the “transfer” element.

The doctrine is a flexible equitable remedy, imposed “whenever justice so demands.”

B. Unclean Hands

The unclean hands doctrine allows a court of equity to deny relief to a plaintiff whose own conduct has been immoral, unconscionable, or inequitable in relation to the subject of the lawsuit. Key features:

• The misconduct must be directly related to the matter in litigation.
• The party invoking the doctrine must have been injured by that conduct (see Weiss v Mayflower Doughnut Corp., 1 NY2d 310 [1956]).
• Unclean hands is “not a protection to a defendant, but a disability to the plaintiff” (Reiner v North Am. Newspaper Alliance, 259 NY 250 [1932]).
• The doctrine is discretionary, and must not be applied in a way that produces a result more offensive to public policy than the conduct it is addressing (55 NY Jur 2d, Equity § 98).

C. Standards of Appellate Review

The court distinguishes two separate appellate standards:

1. Legal sufficiency of the evidence
   A verdict is legally insufficient only where there is “simply no valid line of reasoning and permissible inferences which could possibly lead rational people to the conclusion reached by the jury” (citing Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Nemeth v Brenntag N. Am., 38 NY3d 336 [2022]; Streit v Katrine Apts. Assoc., 212 AD3d 957 [3d Dept 2023]).
2. Weight of the evidence
   A verdict is against the weight of the evidence only when the proof “preponderated so heavily in favor of the losing party that the verdict could not have been reached on any fair interpretation of the evidence” (citing Fusco v Town of Colonie, 238 AD3d 1226 [3d Dept 2025]; Lolik v Big V Supermarkets, 86 NY2d 744 [1995]).

In both contexts, the jury’s credibility determinations and factual inferences are accorded significant deference.

D. Use of Depositions and the Missing Witness Charge

Under CPLR 3117(a)(3)(iii), any party may use a deposition at trial if:

• The opposing party was present, represented, or properly noticed at the deposition, and
• The court finds the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment.

A missing witness charge allows the jury to draw an adverse inference when a party fails to call a witness who would be expected to testify in that party’s favor and whose testimony would be material and noncumulative. It is inappropriate if the witness is genuinely unavailable or cannot be reasonably produced (see People v Gonzalez, 68 NY2d 424 [1986]).

V. Detailed Analysis of the Court’s Reasoning

A. Constructive Trust: Evidence and Legal Sufficiency

The court notes that defendants did not dispute the presence of a confidential relationship between parent and child (citing parent-child constructive trust cases like Rowe v Kingston and Cinquemani v Lazio). The contest centered instead on:

• Whether any promise of ownership was sufficiently definite, and
• Whether there was a qualifying transfer in reliance on such a promise.

1. Implied promise based on family custom

Defendants argued that any promise was too vague. The court rejects the notion that a promise must be explicit or memorialized. Relying on Sharp v Kosmalski and subsequent cases, it emphasizes that:

“the whole transaction, it might be found, was instinct with an obligation imperfectly expressed.”

Evidence showed that:

• From the family’s time in Argentina through their move to the U.S., Iris and Patty (and earlier Gamba) worked extensively in restaurants owned, managed, or operated by their parents.
• The parents told the children from a young age that if they contributed to the business, they would share in the family assets.
• Title to properties was routinely placed in one family member’s name for administrative or tax reasons, not to reflect true beneficial ownership.

Taken together, a rational jury could infer an implied promise that the working children would own or share in particular properties acquired for the family enterprise.

2. “Transfer” via long-term contributions of labor and money

Defendants also argued that there was no qualifying transfer from plaintiffs to defendants. Here the court leans on cases like Baker v Harrison and Cinquemani v Lazio that recognize:

• The transfer requirement can be satisfied where a party contributes funds, time, or effort in reliance on a promise of sharing in the property, even if title is never formally conveyed from the contributor to the titleholder.

The evidence established:

• Iris and Patty secured tenants, promoted the restaurants, managed operations, and over time paid off the mortgages on the Saratoga properties.
• They rehabilitated and lived in the Christian Court property, financed and maintained it, while the father residually spent only occasional time there during visits from Taiwan.
• After the father’s retirement and relocation to Taiwan, he had no ongoing involvement in managing or improving these properties.

Decades of labor and financial outlay in reliance on a family understanding of shared ownership comfortably fall within the expanded notion of “transfer” recognized by New York equity.

3. Unjust enrichment

The unjust enrichment prong was also supported. The court notes:

• The father and Gamba did not materially contribute to the ongoing management or investment in the Saratoga and Christian Court properties after the late 1980s.
• The father’s title was largely a formal device, consistent with family practice, and his 2015 transfer of properties to Gamba for no consideration occurred only after a domestic dispute over rent remittances.
• Allowing the father and Gamba (and later Gamba’s LLC) to keep the properties free of the equitable claims of the sisters who financed and maintained them would effectively reward them for exploiting formal title arrangements contrary to the family’s long-standing understanding.

The court also emphasizes that constructive trust is a flexible remedy – its purpose is to prevent unjust enrichment where property is held in circumstances that make retention inequitable. Here, the imbalance between plaintiffs’ efforts and defendants’ contribution made that inequity manifest.

B. Weight of the Evidence: Deferring to the Jury

On the weight-of-the-evidence challenge, the court underscores that competing narratives were presented:

• Defendants stressed the youth and schooling of Iris and Patty during key periods, downplaying their contributions and suggesting that their presence in the restaurants was casual rather than obligatory.
• Gamba described their contributions as minimal and claimed the hard work to make the Saratoga properties “turnkey” was done during her involvement before 1987.
• The father gave inconsistent testimony about his retirement date and the extent of his involvement.

In contrast:

• Iris and Patty testified that, despite schooling, they were expected to work, their responsibilities increasing over time to include accounting, tenant relations, and management.
• They described decades of work on the properties after Gamba left, including servicing mortgages and maintaining the buildings.
• They explained that placing title in Patty’s name, then in the father’s name, was an internal family mechanism rather than a true shift in beneficial ownership.

Reconciling conflicting testimony, assessing credibility, and weighing documentary inconsistencies is the jury’s role. The court stresses that even if a different verdict would not have been unreasonable, that alone is insufficient to overturn the verdict. What matters is whether the jury’s interpretation is a fair interpretation of the evidence, and the court finds that it is.

C. Flexibility of the Constructive Trust Doctrine

A central jurisprudential contribution of Lu v. Gamba is its explicit embrace of the flexibility of constructive trust. Citing Johnson v Lih and other authorities, the court repeats:

“the elements are simply guidelines, . . . and a constructive trust, as an equitable remedy, may be imposed whenever justice so demands.”

The decision:

• Approves the use of constructive trust in the absence of formal conveyancing or written agreements.
• Recognizes that cultural and familial practices (here, “customary in Chinese families”) – such as placing title in one person’s name for convenience while others are the effective economic owners – can frame the equities.
• Gives trial factfinders substantial latitude to shape equitable remedies that reflect the reality of family business arrangements, rather than the formalities of title records alone.

This is especially important in communities where trust-based and informal arrangements are the norm and documentation is sparse.

D. Unclean Hands: Limits and Individualized Application

1. The 1993 deed transfers and alleged collusion

Defendants argued that plaintiffs were barred by unclean hands because:

• In the 1990s litigation initiated by Gamba, plaintiffs and the father transferred the Saratoga properties to him to create a façade that he “owned everything,”
• They allegedly misrepresented ownership to thwart Gamba’s constructive trust claim, and
• They now take an inconsistent position by asserting that the father did not truly own the properties and that Iris and Patty were the equitable owners.

The court treats the unclean hands analysis as distinct for the father and for Gamba.

2. As to the father

The key question is whether the father was actually injured by, or instead participated in, the 1993 transfer strategy. The court notes:

• Evidence suggested that the transfer was effectuated “with the assistance of counsel” and may have been at the father’s own suggestion.
• He had long been estranged from Gamba and viewed her as acting out of greed; the transfer may have been a strategic move in which he participated.

New York precedent (e.g., National Distillers & Chem. Corp. v Seyopp Corp., 17 NY2d 12 [1966]) supports the idea that unclean hands is not applied to benefit a party who has participated in or benefited from the same conduct. Thus:

• If the father encouraged or approved the transfer, he cannot claim to be the injured party.
• Whether he was a victim or an architect of the strategy is a factual question for the jury.

The court holds that the jury could rationally find that the father was not “injured” in the relevant sense and that application of unclean hands was therefore not required as a matter of law.

3. As to Gamba

Gamba’s unclean hands argument is more subtle: she claimed that the 1993 transfer to the father disadvantaged her in the prior litigation by:

• Changing the title landscape mid-dispute, and
• Inducing her to accept a less favorable settlement focused on Hither House rather than pursuing the Saratoga properties.

The court rejects this for two main reasons:

1. Voluntary settlement, not foreclosure of rights
   Gamba was not prevented from litigating her Saratoga constructive trust claim to judgment. She chose to settle, paying $200,000 for Hither House and agreeing not to pursue the Saratoga claims further. The 1993 deeds did not place the properties beyond her legal reach; they changed formal title but did not preclude a properly pleaded equitable claim.
2. No sufficient showing of injury caused by plaintiffs’ conduct
   The unclean hands doctrine requires that the misconduct directly injure the party invoking the doctrine. Here, the “injury” was at best Gamba’s self-inflicted choice to accept a settlement rather than test her claims in Saratoga County. That is too attenuated to mandate application of unclean hands, especially when balanced against the equitable claims of Iris and Patty.

The court further points out that unclean hands must not be used to work a greater injustice or produce a result contrary to public policy. Stripping Iris and Patty of their equitable interests based on litigation strategy employed decades earlier, which Gamba could have challenged fully at the time, would be such an injustice.

E. Apportionment of Interests

Defendants argued that, even if a constructive trust were appropriate, the jury erred in apportioning all interest in the properties to plaintiffs, ignoring:

• The father’s historical contributions and his role in initially acquiring the properties through family funds, and
• Gamba’s early and significant work in establishing the Saratoga restaurants, including helping to acquire and prepare the properties for business use.

The court acknowledges the factual basis for these arguments but emphasizes the equitable flexibility of constructive trust. It notes:

• The daughters’ ongoing arrangement included providing financial support to the father during his retirement, and they did so until 2015 when the dispute arose (footnote 8).
• Gamba’s involvement with the Saratoga properties effectively ended in the late 1980s; she made no further contributions thereafter.

Equity allows the factfinder to assess the state of contributions and equities as of the time of the suit. Given decades of exclusive stewardship by Iris and Patty and the father’s estrangement and lack of involvement, the jury’s decision to award full beneficial ownership to the plaintiffs was within its equitable discretion. The court declines to disturb that finding.

F. Evidentiary and Procedural Rulings

1. Patty’s deposition testimony (unavailability)

Defendants challenged the use of Patty’s deposition transcript on the ground that plaintiffs allegedly failed to show she was unable to testify live. The court held:

• A nurse practitioner’s letter, stating that Patty had been treated for three years and had a “serious and persistent” condition that prevented her from testifying, was a sufficient foundation for unavailability under CPLR 3117(a)(3)(iii).
• Trial courts have discretion to determine unavailability, and there was no abuse of that discretion here.
• Defendants did not request a specific hearing on unavailability at trial, rendering any such argument unpreserved.

Because Patty was properly deemed unavailable, the trial court also acted within its discretion in refusing a missing witness charge. The missing witness instruction presupposes a witness who could reasonably be produced but is not called; that was not the case here.

2. Tenant witness and late disclosure

Defendants contended that they were unfairly surprised by the testimony of a tenant from the Duo property, because the tenant allegedly failed to comply with a subpoena and defendants had no opportunity to prepare for cross-examination. The court rejected this claim, reasoning:

• The tenant was identified in a pretrial witness list served a week before trial.
• There was no sign that the tenant intentionally evaded the subpoena or that plaintiffs engaged in misconduct.
• Trial courts have broad discretion over discovery and trial management; preclusion is a “drastic remedy” reserved for truly prejudicial or willful violations (see Hubbell, Inc. v Lazy Swan Golf & Country Club LLC, 187 AD3d 1448 [3d Dept 2020]).

The court found no abuse of discretion and no material prejudice warranting reversal.

3. Judicial estoppel

Though raised only belatedly, defendants argued that plaintiffs were judicially estopped from asserting their current ownership claim given their prior litigation position in the 1990s that the father owned the Saratoga properties. The court concludes:

• The argument was not preserved in Supreme Court and is therefore unreviewable, and
• Even if preserved, it fails as a matter of law because judicial estoppel requires that the prior inconsistent position have been adopted by a court in a final determination (see SCE Envtl. Group, Inc. v Murnane Bldg. Contrs., Inc., 242 AD3d 1457 [3d Dept 2025]).

Because the 1990s case ended in a settlement, without a judicial ruling endorsing plaintiffs’ or the father’s assertion of sole ownership, the preconditions for judicial estoppel were not met.

VI. Precedents Cited and Their Influence

A. Constructive Trust and Equity Cases

• Sharp v Kosmalski, 40 NY2d 119 (1976)
  The foundational New York Court of Appeals case on constructive trust, emphasizing that transactions may be “instinct with an obligation imperfectly expressed.” It sets the tone for allowing implied promises based on relational circumstances.
• Morgan v Kilroy, 181 AD3d 1024 (3d Dept 2020); Moak v Raynor, 28 AD3d 900 (3d Dept 2006)
  Reaffirm the standard four elements while stressing that constructive trust is an equitable remedy responsive to the particular facts.
• Baker v Harrison, 180 AD3d 1210 (3d Dept 2020); Cinquemani v Lazio, 37 AD3d 882 (3d Dept 2007)
  These cases support the notion that the “transfer” element may be satisfied by contributions of money, time, or effort, especially in family or quasi-fiduciary contexts – a principle key to Lu v. Gamba.
• Johnson v Lih, 216 AD2d 821 (3d Dept 1995); Mei Yun Chen v Mei Wan Kao, 97 AD3d 730 (2d Dept 2012); Kissane v Cashman, 217 AD3d 932 (2d Dept 2023)
  These authorities articulate that constructive trust elements are “simply guidelines” and may be flexibly applied “whenever justice so demands.” The court heavily relies on this line to justify looking past formal title structures in the Lu family’s businesses.
• Ali v Rahaman, 224 AD3d 721 (2d Dept 2024); Koumantaros v Koumantaros, 223 AD3d 887 (2d Dept 2024); Diaz v Diaz, 130 AD3d 560 (2d Dept 2015); Tyree v Henn, 109 AD3d 906 (2d Dept 2013)
  Each involves constructive trust claims in intimate or familial relationships (often involving contributions to real property), reinforcing that long-term contributions and reliance can justify equitable ownership despite title.
• Aubertine v Aubertine, 240 AD3d 1360 (4th Dept 2025); Ning Xiang Liu v Al Ming Chen, 133 AD3d 644 (2d Dept 2015); Fisk v Campbell, 180 AD2d 987 (3d Dept 1992); Hornett v Leather, 145 AD2d 814 (3d Dept 1988); Neal v Neal, 92 AD2d 633 (3d Dept 1983)
  These cases demonstrate that equity can account for the informality of family arrangements, the absence of written promises, and culturally embedded practices in resolving property disputes.

B. Standards of Review

• Cohen v Hallmark Cards, 45 NY2d 493 (1978) – Provides the classic standard for legal sufficiency of evidence on appeal.
• Nemeth v Brenntag N. Am., 38 NY3d 336 (2022) – A modern restatement of sufficiency review.
• Lolik v Big V Supermarkets, 86 NY2d 744 (1995) – Landmark articulation of the “fair interpretation of the evidence” test for weight-of-the-evidence review.
• Streit v Katrine Apts. Assoc., Inc., 212 AD3d 957 (3d Dept 2023); Fusco v Town of Colonie, 238 AD3d 1226 (3d Dept 2025) – Third Department applications of those standards, cited to show continuity with established doctrine.

C. Unclean Hands and Related Equity Doctrines

• Weiss v Mayflower Doughnut Corp., 1 NY2d 310 (1956)
  Central for the proposition that unclean hands applies only when the misconduct injures the party who invokes the doctrine and relates directly to the claims at issue.
• Reiner v North Am. Newspaper Alliance, 259 NY 250 (1932)
  Describes unclean hands as a “disability” of the plaintiff rather than a protection of the defendant.
• National Distillers & Chem. Corp. v Seyopp Corp., 17 NY2d 12 (1966)
  Supports the idea that a party who benefits from or concurs in the allegedly wrongful conduct cannot wield unclean hands to defeat another’s claim.
• Toobian v Golzad, 193 AD3d 784 (2d Dept 2021) – Observes that equity confers discretion “to do what is fair, proper, and just,” a theme repeated in Lu v. Gamba.
• Sparkling Waters Lakefront Assn., Inc. v Shaw, 42 AD3d 801 (3d Dept 2007); 55 NY Jur 2d Equity § 98 – Emphasize that unclean hands should not produce unjust or public-policy-offensive outcomes.

D. Judicial Estoppel

• SCE Envtl. Group, Inc. v Murnane Bldg. Contrs., Inc., 242 AD3d 1457 (3d Dept 2025)
  Clarifies that judicial estoppel applies only when a prior inconsistent position has been “endorsed through a final determination.” Merely settling a case does not satisfy that requirement.
• Manhattan Ave. Dev. Corp. v Meit, 224 AD2d 191 (1st Dept 1996) – Similarly holds that settlements don’t trigger judicial estoppel because the court hasn’t resolved the issues.

E. Deposition Use, Missing Witness, and Trial Management

• Cutler v Konover, 81 AD2d 571 (2d Dept 1981), affd 55 NY2d 891 (1982); Cunningham v Baldari, 100 AD3d 584 (2d Dept 2012); Sadhwani v NYC Transit Auth., 66 AD3d 405 (1st Dept 2009)
  Support the proposition that medical documentation can suffice to establish witness unavailability for purposes of CPLR 3117.
• People v Gonzalez, 68 NY2d 424 (1986) – Classic authority on the missing witness charge, cited to support the denial of such a charge when a witness is adequately shown to be unavailable.
• Hubbell, Inc. v Lazy Swan Golf & Country Club LLC, 187 AD3d 1448 (3d Dept 2020) – Affirms broad trial court discretion over discovery and testimony, and the view that preclusion is a drastic remedy.

VII. Impact and Implications

A. Immigrant and Family Businesses: Recognizing Informal Customs

Lu v. Gamba is particularly important for families and communities where:

• Businesses are run informally, with heavy reliance on trust and tradition rather than written agreements, and
• Titles to properties are placed in one or a few names for perceived convenience or tax reasons, while others provide substantial work and financial contributions.

The decision confirms that New York courts will:

• Consider evidence of cultural and familial customs (such as those described as “customary in Chinese families”) in deciding equitable ownership disputes, and
• Allow constructive trusts to protect family members whose decades of labor and contribution are otherwise unreflected in official records.

Practically, it signals that:

• Parents or senior family members cannot safely rely solely on formal title to defeat equitable claims from children or relatives who have long operated and financed the enterprise.
• Children and relatives who have contributed substantially to family businesses – especially in reliance on longstanding family practices – have a viable pathway to claim equitable ownership through constructive trusts.

B. Constructive Trust Litigation in New York

For litigators, Lu v. Gamba provides:

• Clear confirmation that constructive trust elements are flexible guidelines, not rigid hurdles.
• Support for using:
  • oral understandings,
  • patterned family practices, and
  • contributions of unpaid labor and management
  as evidence to satisfy the promise and transfer elements.
• Authority to argue that properties titled for convenience (tax or otherwise) may still be impressed with a constructive trust in favor of the true economic stakeholders.

The case will likely be cited in future disputes involving:

• Parent–child or sibling disputes over real estate acquired in the course of family businesses,
• Properties held in the name of one family member but funded and maintained by others, and
• Estate disputes where decedents’ titles do not reflect long-term equitable understandings within the family.

C. Unclean Hands: A Caution Against Overreach

The decision also provides a measured clarification of the unclean hands doctrine:

• It reaffirms that unclean hands is a narrow and discretionary doctrine, requiring a close nexus between the misconduct and a concrete injury to the party invoking it.
• Strategic behavior in prior litigation – including restructuring title – will not automatically bar a later claim, especially when:
  • The invoking party was not prevented from litigating its rights at the time, and
  • Any “injury” is primarily a result of that party’s own litigation choices.

This is important because it prevents defendants from:

• Weaponizing every past inconsistency or strategic move to defeat equitable remedies, and
• Using unclean hands to maintain unjust enrichment simply by pointing to plaintiffs’ imperfect conduct in earlier disputes.

D. Judicial Estoppel and Settlements

Lu v. Gamba underscores a crucial point about judicial estoppel:

• A party’s inconsistent position in a prior case resolved by settlement does not trigger judicial estoppel because the court never adopted that position in a final ruling.

This encourages settlement by preserving litigants’ ability to adjust their legal positions in future disputes, so long as no court has actually rendered a final determination endorsing their earlier stance.

E. Trial Practice: Witness Unavailability and Disclosure

The decision:

• Confirms that reasonably credible medical documentation can suffice to establish a witness’s unavailability under CPLR 3117(a)(3)(iii),
• Reminds counsel that failure to request a hearing or to object properly at trial can waive appellate arguments about the adequacy of the unavailability showing, and
• Reasserts that preclusion of testimony is an extraordinary remedy; identification of a witness on pretrial lists and lack of evidence of willful evasion will usually support admission of the testimony despite technical subpoena issues.

VIII. Complex Concepts Simplified

1. What is a constructive trust?

A constructive trust is not a trust created by documents or lawyers. It is a tool judges use to fix unfair situations involving property. If someone holds legal title in circumstances where it would be unfair for them to keep the benefit, the court can:

• Treat them as if they were holding the property “in trust” for someone else, and
• Order them to transfer the property or its value to that other person.

To decide whether to do that, courts look at:

1. Is there a close or trusting relationship (e.g., family, romantic, or business partners)?
2. Was there a promise – spoken or implied – that the property would be shared or given?
3. Did the claimant act in reliance on that promise (by giving money, labor, or other value)?
4. Would it be unjust to let the titleholder keep everything?

2. What does “unclean hands” mean?

The unclean hands doctrine says: if you want fair treatment from a court of equity, you must have acted fairly yourself in relation to the issue you are asking the court to decide. If:

• You engaged in wrongful conduct directly connected to your claim, and
• The other side was actually harmed by that conduct,

the court may refuse to help you, even if you otherwise have a good case. But:

• The doctrine is not automatic.
• Courts won’t apply it if doing so would create a bigger injustice than ignoring the misconduct.

3. What is the difference between “legal sufficiency” and “weight of the evidence”?

When a case is appealed after a jury verdict, there are two distinct questions:

1. Legal sufficiency: Was there any reasonable way for the jury to reach that verdict based on the evidence? If no rational jury could have decided as it did, the verdict is legally insufficient and must be set aside.
2. Weight of the evidence: Even if some evidence supports the verdict, did the evidence on the other side so strongly outweigh it that the jury’s decision could not be called a fair interpretation of the evidence? Only if the imbalance is very strong will an appellate court overturn the verdict on this ground.

Both standards are hard for appellants to satisfy; appellate courts defer heavily to the jury’s view of witness credibility and factual conflicts.

4. Why could Patty’s deposition be used instead of live testimony?

Normally, a witness testifies in person at trial. But under CPLR 3117:

• If a witness is genuinely unable to appear (due to serious illness, infirmity, age, or imprisonment),
• And the other party had a chance to question the witness at the deposition,

the court can allow the deposition transcript to be read at trial. In Lu v. Gamba, a treating nurse practitioner stated that Patty’s condition made her unable to testify. The court accepted this and allowed the deposition in place of live testimony.

5. What is a missing witness charge?

A missing witness charge is an instruction the judge can give the jury, saying (in substance):

“You may infer that a witness not called by a party would not have given favorable testimony to that party, if the party had it within their power to produce the witness and yet did not do so without a reasonable explanation.”

This is only appropriate if:

• The witness is under the control of the party and expected to testify in that party’s favor,
• The witness’s testimony would be important and not repetitive, and
• The witness is not genuinely unavailable (e.g., seriously ill).

Because Patty was deemed medically unavailable, a missing witness charge was inappropriate.

6. What is judicial estoppel?

Judicial estoppel prevents a party from:

• Taking one position in a legal proceeding, winning or benefitting based on that position, and then
• Taking the opposite position in a later case to gain a new advantage.

But it only applies if:

• The earlier position was adopted by the court in a final judgment or decision (not just asserted in a pleading, or resolved by settlement).

In Lu v. Gamba, no final court decision endorsed the earlier claim that the father “owned everything”; the case was settled. So judicial estoppel did not apply.

IX. Conclusion

Lu v. Gamba reinforces and deepens New York’s commitment to using constructive trust as a flexible, culturally sensitive equitable remedy in family property disputes. Its key contributions are:

• Affirming that informal family customs and long-term contributions of labor and management can establish an implied promise and a transfer sufficient to impose a constructive trust.
• Underscoring that equity looks beyond title and paper ownership to identify who, in justice, should own the property.
• Clarifying that unclean hands requires both wrongful conduct and a direct injury to the invoking party, and that it remains a discretionary doctrine that must not produce inequitable or policy-offensive outcomes.
• Confirming that judicial estoppel does not arise from settlements and that litigants remain free to adjust their positions when no court has previously adopted their earlier stance.
• Demonstrating substantial deference to jury verdicts on conflicting family narratives and to trial courts’ discretion in managing evidence and witness availability.

In the broader legal context, the case will be a useful authority for:

• Children and other family members seeking to protect their equitable stakes in family businesses and properties despite adverse title structures,
• Courts confronting disputes rooted in culturally specific family practices and oral understandings, and
• Litigators structuring or challenging constructive trust and equitable defenses in New York’s trial and appellate courts.

Ultimately, Lu v. Gamba showcases equity’s essential role in aligning legal outcomes with the realities of family life and long-term reliance, particularly where formal documentation lags far behind lived economic relationships.