| Columbo v Columbo |
| 2008 NY Slip Op 02952 [50 AD3d 617] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Christopher M. Columbo, Respondent, v Anthony E.Columbo, Jr., Defendant, and Barbara Whalen et al., Appellants. |
—[*1] Joseph J. Haspel, Goshen, N.Y., for respondent.
In an action, inter alia, to impose a constructive trust on real property, the defendants BarbaraWhalen and Century 21 Mortgage appeal, as limited by their brief, (1) from so much of an orderof the Supreme Court, Dutchess County (Sproat, J.), dated November 20, 2006, as denied theirmotion, in effect, for summary judgment dismissing the cause of action seeking to impose aconstructive trust insofar as asserted against them and to cancel the notice of pendency, and (2)from so much of an order of the same court, dated March 19, 2007, as, upon reargument, adheredto the original determination.
Ordered that the appeal from the order dated November 20, 2006, is dismissed, as the portionof the order appealed from was superseded by the order dated March 19, 2007, made uponreargument; and it is further,
Ordered that the order dated March 19, 2007 is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The defendant Barbara Whalen purchased certain residential premises from the defendantAnthony E. Columbo, Jr. (hereinafter Anthony). Prior to the closing, the plaintiff Christopher M.[*2]Columbo filed a notice of pendency and commenced thisaction against Anthony seeking, inter alia, to impose a constructive trust on the premises. Healleged that Anthony had agreed to purchase the premises as his nominee, but that he, theplaintiff, paid the downpayment, mortgage, and maintenance. The plaintiff allegedly sought thisarrangement because he had purchased the subject premises for his girlfriend, unbeknownst tohis wife. Whalen and the defendant Century 21 Mortgage (hereinafter collectively theappellants), were subsequently made parties to the action by stipulation.
Following discovery, Anthony moved for summary judgment dismissing the complaintinsofar as asserted against him contending, inter alia, that the plaintiff's unclean hands precludedthe imposition of a constructive trust. The appellants separately moved, in effect, for summaryjudgment dismissing the constructive trust cause of action insofar as asserted against them and tocancel the notice of pendency, also arguing that the plaintiff was not entitled to equitable reliefbecause of his unclean hands.
The Supreme Court denied the appellants' motion. The appellants subsequently moved, interalia, for leave to reargue. The court granted reargument, but adhered to its original determination.
The appellants failed to establish their prima facie entitlement to judgment as a matter of law.A party seeking an equitable remedy must not have "unclean hands" (Kopsidas v Krokos,294 AD2d 406, 407 [2002]). "The doctrine of unclean hands applies when the complainingparty shows that the offending party is guilty of immoral, unconscionable conduct and even thenonly when the conduct relied on is directly related to the subject matter in litigation and the partyseeking to invoke the doctrine was injured by such conduct" (Kopsidas v Krokos, 294AD2d at 407 [internal quotation marks omitted]). Here, the plaintiff's alleged immoral conduct inseeking to purchase the premises for his girlfriend was directed at his wife, who is not a party tothis action, and thus neither directly related to the subject matter in litigation nor directly injuredthe appellants (see Kopsidas v Krokos, 294 AD2d 406 [2002]; Higgins v Normile,130 AD2d 828 [1987]; cf. Festingerv Edrich, 32 AD3d 412 [2006]).
Further, contrary to the appellants' contention, it cannot be concluded as a matter of law thatthe plaintiff has an adequate legal remedy (see Henness v Hunt, 272 AD2d 756, 758[2000]). Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.