| Augur v Augur |
| 2011 NY Slip Op 08702 [90 AD3d 1111] |
| December 1, 2011 |
| Appellate Division, Third Department |
| Charles Augur, Appellant, v Raymond Augur, Respondent, et al.,Defendant. |
—[*1] Parshall and West, Worcester (Marvin D. Parshall of counsel), for Raymond Augur,respondent.
Stein, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered July 1, 2010 inOtsego County, which, among other things, granted defendant Raymond Augur's motion forsummary judgment dismissing the complaint.
Defendant Raymond Augur (hereinafter defendant) and his ex-wife, defendant Joan Augur,own a several hundred-acre farm in the Town of Middlefield, Otsego County. Plaintiff,defendants' son, worked on the farm for approximately 26 years. The farm formerly operated as adairy, but is now primarily engaged in the business of reselling bulk fertilizer. Plaintiff's servicesincluded, among other things, caring for livestock, planting and harvesting crops and customerservice for the bulk fertilizer business. Plaintiff commenced this action seeking a constructivetrust and filed a notice of pendency. Plaintiff alleges that, in exchange for his labor and in lieu ofregular pay, defendant promised to give him the farm upon defendant's retirement. Defendantdenies making any such promise and, after joinder of issue and limited discovery, he moved forsummary judgment dismissing the complaint and canceling the notice of pendency. SupremeCourt granted the motion in its entirety, finding that plaintiff had failed to create an issue of factas to several elements of the cause of action for a constructive trust. Plaintiff now appeals.[*2]
We reverse. As the movant for summary judgment,defendant had the initial burden of making a prima facie showing of entitlement to judgment as amatter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Here, defendantcould meet this burden by establishing that plaintiff was unable to demonstrate one or moreelements of a cause of action for a constructive trust. The elements of such cause of action, whichare "simply guidelines . . . not to be applied rigidly in pursuing the goal ofpreventing unjust enrichment" (Henness v Hunt, 272 AD2d 756, 757 [2000]; see Cinquemani v Lazio, 37 AD3d882, 882 [2007]), are a confidential or fiduciary relationship, a promise, a transfer in reliancethereon and unjust enrichment (see Cinquemani v Lazio, 37 AD3d at 882; Cleland vThirion, 268 AD2d 842, 844 [2000]). To establish unjust enrichment, a plaintiff mustdemonstrate that "(1) the other party was enriched, (2) at [the plaintiff's] expense and (3) that it isagainst equity and good conscience to permit [the other party] to retain what is sought to berecovered" (Levin v Kitsis, 82AD3d 1051, 1053 [2011] [internal quotation marks and citation omitted]; see Mandarin Trading Ltd. vWildenstein, 16 NY3d 173, 182 [2011]).
In support of his motion, defendant proffered, among other things, his affidavit and theaffidavit of Joan Augur, in which they deny the existence of any promise to plaintiff to conveythe farm and establish the absence of any fraudulent transfer or unjust enrichment. With regard tothe latter, defendant alleges that plaintiff worked on the farm after graduating from high schoolby his own choice. He further alleges that, while plaintiff was not paid a salary for his labor, hedid receive consideration in the form of several commercial vehicles, his rent-free use of the farmproperty for his own fertilizer spraying business and his retention of the profits from the plantingand harvesting of certain crops on the property. This evidence was arguably sufficient to shift theburden to plaintiff to establish the existence of a triable issue of fact with respect to each elementof a constructive trust (see Alvarez v Prospect Hosp., 68 NY2d at 324).
In opposition to the motion, plaintiff submitted his own affidavit and that of his wife, whoboth alleged that, in reliance on defendant's promise to give the farm to plaintiff upon defendant'sretirement, plaintiff had worked long hours without regular pay, procured and maintainednecessary environmental permits and licenses for the fertilizer business and made substantialfinancial contributions in furtherance of the farm business for a period of more than 20 years, inreturn for which he received only a small amount of spending money and rent-free use of thefarm for his own fertilizer spraying business.[FN1]Supreme Court found—and the parties do not dispute—that a confidentialrelationship existed between plaintiff and defendant. In addition, an issue of fact clearly exists asto whether defendant made a promise to plaintiff to transfer the land to him. Notably, contrary toSupreme Court's determination that plaintiff failed to establish a transfer of the property, therequirement of a transfer may be "satisfied where[, as here,] the party seeking to impose the trusthas no prior interest in the property but does contribute funds, time or effort to the property inreliance on a promise to share in some interest in it" (Henness v Hunt, 272 AD2d at 757).
In our view, plaintiff has also raised a triable issue of fact as to the element of unjust [*3]enrichment. Although it is undisputed that plaintiff received someconsideration for his services, his affidavit is sufficient to raise factual questions as to the valueof his labor and financial contributions to the farm relative to the consideration received and,thus, as to whether it would be unjust for defendant to retain the benefit of those contributions(see Vopelak v Tedeschi, 281 AD2d 809, 811 [2001]).[FN2]Accordingly, summary judgment dismissing the complaint should not have been granted and thelis pendens filed by plaintiff should not have been canceled (see generally Guzzo vEasterntech Elecs., 86 AD2d 717, 718 [1982]).
Defendants' remaining contentions have been considered and are found to be without merit.
Mercure, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order isreversed, on the law, with costs, motion denied and lis pendens reinstated.
Footnote 1: Although plaintiff also refers tohis receipt of a $60,000 home constructed on the farm property, he claims to have paid defendantfor this home over time through his efforts in the bulk fertilizer business and by planting andharvesting a corn crop without retaining any profits.
Footnote 2: In view of the general rule thatpleadings are to be liberally construed (see CPLR 3026; Adirondack Park Agency vTon-Da-Lay Assoc., 61 AD2d 107, 110 [1978], lvs dismissed 45 NY2d 710, 834[1978]), we also disagree with defendant's argument that defendant's unjust enrichment was notalleged in the complaint.