Creamer v. DaCruz

MARK C. DILLON, J.P.

JOSEPH J. MALTESE FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ. (Index No. 14358/14)

Muchmore & Associates PLLC, Brooklyn, NY (Andrew Muchmore of counsel), for appellant.

Salzman & Salzman, LLP, New York, NY (Robert Salzman of counsel), for respondents.

DECISION & ORDER

In an action to impose a constructive trust upon certain real property, the defendant appeals from (1) a decision of the Supreme Court, Kings County (Edgar G. Walker, J.), dated March 29, 2019, and (2) a judgment of the same court dated April 30, 2019. The judgment, insofar as appealed from, upon the decision, made after a nonjury trial, is in favor of the plaintiffs and against the defendant, declaring void ab initio a certain deed and imposing a constructive trust on the subject property.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

In October 2014, the plaintiffs commenced this action against the defendant seeking to impose a constructive trust on certain real property located in Brooklyn. Following a nonjury trial, the Supreme Court found in favor of the plaintiffs and, inter alia, declared void ab initio a deed dated January 27, 2010, and imposed a constructive trust on the subject property. The defendant appeals.

"In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial court had the advantage of seeing and hearing the witnesses" (Tyree v Henn, 109 AD3d 906, 907; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Ning Xiang Liu v Al Ming Chen, 133 AD3d 644, 644). Here, the Supreme Court's determination to impose a constructive trust on the subject property was warranted by the facts.

"Generally, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest" (Sharp v Kosmalski, 40 NY2d 119, 121 [internal quotation marks and brackets omitted]; see Ning Xiang Liu v Al Ming Chen, 133 AD3d at 644). "The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment" (Ning Xiang Liu v Al Ming Chen, 133 AD3d at 644 [internal quotation marks omitted]; see Sharp v Kosmalski, 40 NY2d at 121). Here, the evidence adduced at trial established the necessary elements for the imposition of a constructive trust.

The defendant's remaining contentions are without merit.

DILLON, J.P., MALTESE, CONNOLLY and CHRISTOPHER, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court