| Nathanson v Tri-State Constr. LLC |
| 2008 NY Slip Op 01815 [48 AD3d 373] |
| February 28, 2008 |
| Appellate Division, First Department |
| Asa Nathanson, Appellant, et al., Plaintiff, v Tri-StateConstruction LLC et al., Defendants, and Vaij Associates LLC, ProposedDefendant-Respondent. |
—[*1] The Law Firm of Jeffrey S. Dweck, P.C., New York City (Jeffrey S. Dweck of counsel), forrespondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered February 14, 2007,which, to the extent appealed from, denied plaintiff Nathanson's motion to amend the complaintto add Vaij Associates as a defendant, to consolidate this case with another pending matter, andto impose a constructive trust on the proposed new defendant, affirmed, without costs.
Nathanson failed to demonstrate merit to the proposed amendment (Helene-Harrisson Corp. v MoneylineNetworks, 6 AD3d 151 [2004]). In light of our recent affirmance of the dismissal of thecase with which Nathanson sought consolidation (see Tri State Constr., LLC v Vaij Realty Assoc., 45 AD3d 328[2007]), the contentions regarding this issue have been rendered academic. Were we to reach theissue, we would find that none of the elements required for imposition of a constructive trusthave been established (see Sharp v Kosmalski, 40 NY2d 119 [1976]).Concur—Tom, J.P., Saxe, Friedman and Gonzalez, JJ.
McGuire, J., concurs in a separate memorandum as follows: The denial of that aspect ofplaintiff's motion for a constructive trust on Vaij Associates (Vaij) has been rendered academicby our determination that plaintiff failed to demonstrate merit [*2]to that aspect of the motion seeking to amend the complaint to addVaij as a defendant. Without a valid complaint against Vaij or anyone else, plaintiff's motion fora constructive trust on Vaij obviously has been rendered academic. Accordingly, this Courtshould not unnecessarily express an opinion on the merits of that aspect of the motion for aconstructive trust (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980][the mootness doctrine, "which forbids courts to pass on academic, hypothetical, moot, orotherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, andin methodological strictures which inhere in the decisional process of a common-law judiciary"]).The contrary-to-fact construction with which the majority prefaces its "contingent observation"about the merits of that motion (Bell v Miller, 500 F3d 149, 155 [2d Cir 2007]) servesonly to underscore the unnecessary character of that observation.