| Salatino v Salatino |
| 2009 NY Slip Op 05710 [64 AD3d 923] |
| July 9, 2009 |
| Appellate Division, Third Department |
| Linda Salatino, Appellant, v Patrick Salatino, Respondent. (AndAnother Related Proceeding.) |
—[*1] McCabe and Mack, L.L.P., Poughkeepsie (Sean Kemp of counsel), for respondent.
McCarthy, J. Appeals (1) from an order of the Supreme Court (Work, J.), entered October16, 2007 in Ulster County, among other things, upon a decision of the court in favor ofdefendant, and (2) from an order of said court, entered August 27, 2008 in Ulster County, which,upon reconsideration, directed plaintiff to provide an accounting of the rents and profits fromcertain real property.
This action stems from plaintiff's claim that her parents—defendant and her deceasedmother, Rose Salatino (hereinafter decedent)—promised her that she would eventuallyreceive their respective interests in two pieces of property they owned as tenants by the entirety.One of the properties, located in Kings County, was the marital residence for many years andnow consists of three rental units. The other property, located in Ulster County, was essentially asecond home for the family but ultimately became defendant's permanent home. According toplaintiff, sometime in the late 1980s, her parents orally promised to give her a one-half interest inboth properties upon the death of the first parent and the remaining one-half interest upon thedeath of the second. As a result of this promise, according to plaintiff, she eventually became thesole manager of the Kings County rental property.[FN*]It is undisputed that she never turned over [*2]any portion of therental income to defendant after decedent's death nor did defendant ever ask for any portion ofthe rental proceeds.
In 2001, defendant attempted to sell the Kings County property. Plaintiff then commencedthis action seeking, as now relevant, the imposition of a constructive trust against both propertiesand to quiet title to both properties. Defendant eventually asserted a counterclaim seekingentitlement to an accounting for plaintiff's conversion and retention of the rental income from theKings County property. Following a nonjury trial, and pursuant to two separate decisions,Supreme Court dismissed all of plaintiff's causes of action and ordered that she account for therent collected from the Kings County property. These appeals ensued.
We first find that the constructive trust causes of action were properly dismissed. "Theelements of a constructive trust are a confidential or fiduciary relationship, a promise, a transferin reliance thereon and unjust enrichment" (Cinquemani v Lazio, 37 AD3d 882, 882 [2007] [citationsomitted]). At trial, plaintiff testified about the alleged promise made to her by defendantconcerning both properties. Defendant, however, unequivocally denied any such promise. Inshort, he denied that he ever promised to give plaintiff a one-half interest in either of theseproperties if decedent died before him and the remaining one-half interest at his death. Critically,Supreme Court did not find plaintiff "to be credible"—specifically noting that "[i]t beginsto appear th[at plaintiff] is making it up as she goes along"—and did find defendant'stestimony to be "clear and credible."
Based on this assessment of witness credibility, Supreme Court found "no evidence of apromise by either parent to convey real property to . . . plaintiff" for the purpose ofimposing a constructive trust. According due deference to this credibility determination andupon our independent review of the record (see id. at 883; see generally Bush v State of NewYork, 57 AD3d 1066, 1066 [2008]), we find no basis to disturb dismissal of theconstructive trust causes of action since the element of a promise was clearly lacking (seeScivoletti v Marsala, 61 NY2d 806, 808 [1984]; Kellerman v Kellerman, 187 AD2d906, 908 [1992]; compare Koslowski v Koslowski, 297 AD2d 784, 785 [2002]; Fiskv Campbell, 180 AD2d 987, 988 [1992]; Hornett v Leather, 145 AD2d 814, 815[1988], lv denied 74 NY2d 603 [1989]; Palazzo v Palazzo, 121 AD2d 261, 263[1986]).
We likewise uphold dismissal of the causes of action seeking to quiet title to both properties.It is undisputed that defendant and decedent held title to the Kings County and Ulster Countyproperties as tenants by the entirety. This, therefore, "confer[ed] on [defendant] a right toabsolute ownership of the propert[ies] upon [decedent's] death" (V.R.W., Inc. v Klein, 68NY2d 560, 564 [1986]).
Next, we find that defendant failed to prove that plaintiff converted the rental income fromthe Kings County property. "Conversion is the unauthorized assumption and exercise of the rightof ownership over goods belonging to another to the exclusion of the owner's rights" (Stateof New York v Seventh Regiment Fund, 98 NY2d 249, 259 [2002] [internal quotation marksand [*3]citation omitted]; see e.g. Miller v Marchuska, 31 AD3d 949, 950 [2006]). Where, ashere, "the property is money, it must be specifically identifiable and be subject to an obligationto be returned or to be otherwise treated in a particular manner" (Key Bank of N.Y. vGrossi, 227 AD2d 841, 843 [1996]). Further, where possession of property is initiallylawful, conversion occurs when there is a refusal to return the property upon demand (seee.g. MacDonnell v Buffalo Loan, Trust & Safe Deposit Co., 193 NY 92, 101 [1908]; Matter of Rausman, 50 AD3d909, 910 [2008]; TeeVee Toons,Inc. v Prudential Sec. Credit Corp., L.L.C., 8 AD3d 134, 134 [2004]; Feld vFeld, 279 AD2d 393, 394 [2001], lv denied 96 NY2d 717 [2001]; Matter ofWhite v City of Mount Vernon, 221 AD2d 345, 346 [1995]). Here, the record reveals thatplaintiff lawfully retained the rental proceeds following the death of decedent pursuant to anexpress or, at the very least, implied agreement between her and defendant and that defendantthereafter never demanded that she turn over any portion of these funds to him or requested anaccounting (compare Palazzo v Palazzo, 121 AD2d at 265). Thus, we find that he failedto prove his conversion claim.
Plaintiff testified that, after decedent's death, she solely managed the Kings County propertyand kept all net rental proceeds with full knowledge and express permission by defendant. Whiledefendant denied giving her express permission to keep the net rental proceeds, he clearlytestified that he knew that she was solely managing the property since decedent took ill and thatshe was keeping the rental money. He further clearly testified that he never asked her for anyportion of these funds—because "the money didn't mean that much to [him]"—andthat he never requested an accounting.
To this end, we note that defendant tacitly admits that plaintiff initially had permission toretain the rental income following decedent's death. He argues, however, that this permission"was withdrawn" and that the requisite "demand" was made in 2001, when he attempted toregain control of the property to sell it. We are unpersuaded. While defendant's attempt to sellthis property in 2001 was clearly indicative of his belief that he was its sole owner, it did notconstitute a withdrawal of his previous permission for her to manage the property and retain therents or constitute a demand for rents, particularly in light of his clear and unequivocal testimonythat he never objected to her managing the property or retaining the rents and that he never madea demand for rents or an accounting.
All remaining contentions have been reviewed and found to be without merit.
Cardona, P.J., Rose, Kane and Garry, JJ., concur. Ordered that the order entered October 16,2007 is affirmed, without costs. Ordered that the order entered August 27, 2008 is modified, onthe law, without costs, by reversing so much thereof as ordered an accounting for rents andprofits of the Kings County property, and, as so modified, affirmed.
Footnote *: As between defendant anddecedent, there is no dispute that, prior to her death in 1999, decedent handled all the finances inthe marriage (defendant cannot read or write) and also managed the rental portion of the KingsCounty property. There is also no dispute that, after decedent's death, plaintiff took overmanagement of the Kings County property.