| Moramarco v Ruggiero |
| 2008 NY Slip Op 07882 [55 AD3d 694] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Mary Moramarco et al., Respondents, v Santo Ruggiero et al.,Appellants. (And a Third-Party Action.) |
—[*1] John Z. Marangos, Staten Island, N.Y., for respondents.
In an action, inter alia, to impose a constructive trust, the defendants appeal from an order of theSurrogate's Court, Richmond County (Fusco, S.), dated August 31, 2007, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' motion which was for summary judgment dismissing the cause of actionseeking to impose a constructive trust, and substituting therefor a provision granting that branch of themotion; as so modified, the order is affirmed, without costs or disbursements.
In support of that branch of their motion which was for summary judgment dismissing the cause ofaction seeking to impose a constructive trust, the defendants made a prima facie showing of entitlementto judgment as a matter of law (see Peebles vPeebles, 40 AD3d 1388, 1390 [2007]; Matter of Noble, 31 AD3d 643, 644-645 [2006]; Doxey v Glen Cove Community Dev. Agency,28 AD3d 511, 512 [2006]; see generally Alvarez v Prospect Hosp., 68 NY2d 320[1986]). In opposition, the plaintiffs failed to raise a triable issue of fact. In particular, the plaintiffs failedto raise a triable issue as to whether any promises were made, and whether any of the subject transferswere made in reliance thereon (see Matter ofNoble, 31 AD3d 643, 644-645 [2006]). Accordingly, the Surrogate's Court should havegranted that branch of the defendants' motion which was for summary judgment dismissing the cause ofaction seeking to impose a constructive trust on the subject property.
The defendants' remaining contentions are without merit. Lifson, J.P., Ritter, Miller and Balkin, JJ.,concur.