MARTINEZ v. DUSHKO

ORDERED that the judgment is modified, on the law, the facts, and as an exercise of discretion, by deleting the first through seventh decretal paragraphs thereof, inter alia, imposing a constructive trust in favor of the nonparties Adrian Padro, Michael Anthony Padro, and Sabrina Marie Padro; as so modified, the judgment is affirmed, without costs or disbursements.

A court's determination after a nonjury trial should be upheld if it is based on a fair interpretation of the evidence ( see Vizzari v. Hernandez, 1 A.D.3d 431; Southampton Commons Assn. v. Southampton Assocs., 268 A.D.2d 580; Larkfield Landscapers v. Cron, 204 A.D.2d 407). Here, the trial court, which found that the plaintiff failed to establish, inter alia, the existence of a confidential or fiduciary relationship ( cf. Ellner v. Pope, 285 A.D.2d 624), or a promise to transfer title to the subject property ( cf. Matter of Steibel, 227 A.D.2d 408), determined that he was not entitled to the imposition of a constructive trust in his favor ( see generally Sharp v. Kosmalski, 40 N.Y.2d 119). Since this determination was based on a fair interpretation of the evidence, the complaint was properly dismissed.

However, the trial court improperly proceeded to impose a constructive trust in favor of the nonparties, as this relief was never requested ( see Alexander Ave. Kosher Rest. Corp. v. Dragoon, 306 A.D.2d 298; Tuma v. Galgano, 303 A.D.2d 675; Harrington v. McManus, 303 A.D.2d 368; Matter of McAteer v. Condon, 296 A.D.2d 412; Matter of Irons v. Schneller, 258 A.D.2d 652).

KRAUSMAN, J.P., ADAMS, COZIER and RIVERA, JJ., concur.