Ordered that the order is affirmed, with costs.
Once the party moving has demonstrated an entitlement to summary judgment, the party opposing the motion must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action or tender a reasonable excuse for the failure to do so (see, Zuckerman v City of New York, 49 N.Y.2d 557). We find that there are triable issues of fact with respect to the counterclaim to impose a constructive trust upon the property in question.
Generally, before granting the equitable remedy of a constructive trust, four elements must be established: (1) a confidential or fiduciary relationship, (2) a promise, express or implied, (3) a transfer in reliance thereon, and (4) unjust enrichment (see, Sharp v Kosmalski, 40 N.Y.2d 119, 121; Binenfeld v Binenfeld, 146 A.D.2d 663). Notably, these elements are not rigid, but are flexible considerations for the court to apply in determining whether to impose a constructive trust (Lester v Zimmer, 147 A.D.2d 340). We find that whether, inter alia, the plaintiff's relationship with the defendants satisfied the initial requisite of a confidential or fiduciary relationship is a factual issue which can only be resolved at the trial (see, Mendel v Hewitt, 161 A.D.2d 849).
Moreover, we find that the Statute of Frauds does not bar a cause of action to impose a constructive trust since, by its very nature, a constructive trust does not require a writing (see, Spodek v Riskin, 150 A.D.2d 358; Vanasco v Angiolelli, 97 A.D.2d 462). Kunzeman, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.