| Pereira v Glicker |
| 2009 NY Slip Op 03497 [61 AD3d 948] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Michael Pereira et al., Respondents, v Gary Glicker et al.,Appellants, et al., Defendant. |
—[*1] David J. Hernandez, New York, N.Y., for respondents.
In an action, inter alia, to impose a constructive trust upon certain real property, thedefendants Gary Glicker and Frances Glicker appeal from an order of the Supreme Court, KingsCounty (Partnow, J.), dated November 29, 2007, which denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsGary Glicker and Frances Glicker for summary judgment dismissing the complaint insofar asasserted against them is granted.
The plaintiffs seek to impose a constructive trust upon a condominium unit which wasacquired in 1992 by their mother, now deceased, and the appellants, who are a daughter andson-in-law of the decedent. The elements needed for the imposition of a constructive trust are (1)a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon, and (4)unjust enrichment (see Simonds v Simonds, 45 NY2d 233, 241-242 [1978]; Sharp vKosmalski, 40 NY2d 119, 121 [1976]; Cerabono v Price, 7 AD3d 479, 480 [2004]). Here, the appellantsmade a prima facie showing of entitlement to judgment as a matter of law (see generallyAlvarez v Prospect Hosp., 68 NY2d 320 [1986]), and in response, the plaintiffs failed toraise a triable issue of fact (seeCerabono v Price, 7 AD3d 479, 480 [2004]; Polinskie v Phillips, 232 AD2d466, 467 [1996]). Accordingly, the Supreme Court should have granted the appellants' motionfor summary judgment dismissing the complaint insofar as asserted against them. Spolzino, J.P.,Florio, Miller and Eng, JJ., concur.