DANIEL D. ANGIOLILLO
Cooper, Paroff, Cooper & Cook, Kew Gardens, N.Y. (Ira G. Cooper of counsel), for appellant. Perry Ian Tischler, Bayside, N.Y., for respondent.
DANIEL D. ANGIOLILLO, J.P., ARIEL E. BELEN, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.
In an action, inter alia, to impose a constructive trust upon certain real property, the defendant appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Queens County (Geller, J.H.O.), dated December 2, 2010, as, upon a decision of the same court dated July 28, 2010, made after a nonjury trial, is in favor of the plaintiff and against her, awarding the plaintiff a one-half interest in the subject property.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
In order to obtain the remedy of a constructive trust, a plaintiff generally is required to demonstrate four factors: (1) a fiduciary or confidential relationship between the parties, (2) a promise, (3) a transfer of some asset in reliance upon the promise, and (4) unjust enrichment flowing from the breach of the promise ( see McGrath v. Hilding, 41 N.Y.2d 625, 629, 394 N.Y.S.2d 603, 363 N.E.2d 328;Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721). To achieve equity and avoid unjust enrichment, the courts apply these factors flexibly rather than rigidly ( see Simonds v. Simonds, 45 N.Y.2d 233, 241, 408 N.Y.S.2d 359, 380 N.E.2d 189;Moak v. Raynor, 28 A.D.3d 900, 902, 814 N.Y.S.2d 289).
Contrary to the defendant's contention, the evidence adduced at trial supported the Supreme Court's finding that all of the elements for the imposition of a constructive trust had been satisfied, since there was proof that a relationship of trust and dependence existed between the plaintiff and the defendant due to their close friendship lasting over 20 years and prior financial dealings, that the defendant promised to hold the plaintiff's one-half interest in the subject property, that the plaintiff transferred money to the defendant in reliance on that promise, and that the defendant thereafter denied the plaintiff's one-half ownership of the property and sought to have her evicted from the subject apartment. In view of this evidence, there is no basis upon which to disturb the Supreme Court's judgment ( see Watson v. Pascal, 65 A.D.3d 1333, 886 N.Y.S.2d 440;Squiciarino v. Squiciarino, 35 A.D.3d 844, 830 N.Y.S.2d 163;Byrd v. Brown, 208 A.D.2d 582, 617 N.Y.S.2d 192).