| Morice v Garritano |
| 2009 NY Slip Op 04212 [62 AD3d 971] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Andrew P. Morice, Appellant, v Bruce A. Garritano,Respondent. |
—[*1] Scheyer & Jellenik, Nesconset, N.Y. (Stephen R. Jellenik of counsel), forrespondent.
In an action, inter alia, for a judgment declaring the existence of a partnership and for theimposition of a constructive trust, the plaintiff appeals, as limited by his brief, from so much ofan order of the Supreme Court, Suffolk County (Jones, J.), dated July 23, 2008, as granted thatbranch of the defendant's motion which was to cancel the notice of pendency filed against certainparcels of real property.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the motion which was to cancel the notice of pendency is denied, and the notice ofpendency is reinstated.
In his second cause of action, the plaintiff sought to impose a constructive trust in his favorupon, among others, the subject "hotel properties" legally owned by, and titled in, the defendant'sname. The cause of action for a constructive trust "seeks a judgment affecting title to, or thepossession, use or enjoyment of real property within the purview of CPLR 6501" (Peterson vKelly, 173 AD2d 688, 689 [1991] [citations omitted]) and thus was sufficient to support thefiling of a notice of pendency (see Kleinv Gutman, 12 AD3d 348, 352 [2004]; Peterson v Kelly, 173 AD2d at 689;Jacobs v Abramoff, 148 AD2d 497, 499 [1989]; Siegel v Silverstone, 250 AppDiv 784 [1937]; cf. 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 318 [1984];Yonaty v Glauber, 40 AD3d1193 [2007]). Spolzino, J.P., Florio, Miller and Eng, JJ., concur.