| Maiorino v Galindo |
| 2009 NY Slip Op 06123 [65 AD3d 525] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Edward Maiorino, Respondent, v Steve Galindo et al.,Appellants, et al., Defendants. |
—[*1] Brian J. Davis, P.C., Garden City, N.Y., for respondent.
In an action, inter alia, to impose a constructive trust on certain real property, the defendantsSteve Galindo, Michael Madia, James Napolitano, Demo Works, Inc., Kitchen Designs byDependable, Inc., and "ABC Corp.," as successor in interest to Kitchen Designs by Dependable,Inc., appeal, as limited by their notice of appeal and brief, from so much of an order of theSupreme Court, Nassau County (Warshawsky, J.), dated May 22, 2008, as denied those branchesof the defendants' motion which were to dismiss the cause of action seeking to impose aconstructive trust on certain real property pursuant to CPLR 3211 (a) (7), and to cancel a noticeof pendency pursuant to CPLR 6514 (b).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendants' motion which were to dismiss the cause of action seeking to imposea constructive trust on certain real property pursuant to CPLR 3211 (a) (7) and to cancel a noticeof pendency pursuant to CPLR 6514 (b) are granted.
The plaintiff, Edward Maiorino, who was a 50% shareholder in the defendant Demo Works,Inc. (hereinafter Demo), alleged, inter alia, that the defendant Steve Galindo, who was also a50% shareholder in Demo, improperly diverted assets of Demo to improve real property inBethpage (hereinafter the Bethpage property). The defendant Michael Madia had purchased theBethpage property in his own name and financed the purchase by obtaining mortgages for thefull purchase price, but the complaint alleges, in effect, that Galindo used Madia to purchase thehome for him because Madia was able to obtain credit. The complaint seeks, among other things,to impose a constructive trust on the Bethpage property. The defendants moved, inter alia, todismiss [*2]the cause of action seeking to impose a constructivetrust under CPLR 3211 (a) (7) and to cancel the notice of pendency under CPLR 6514 (b). In theorder appealed from, the Supreme Court, among other things, denied those branches of themotion. We reverse the order insofar as appealed from.
Inasmuch as the motion was made pursuant to CPLR 3211 (a) (7), the court must accept allfacts as alleged in the complaint to be true and accord the plaintiff the benefit of every possibleinference (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; Smithv Meridian Tech., Inc., 52 AD3d 685, 686 [2008]). In general, it may be appropriate toimpose a constructive trust in situations " '[w]hen property has been acquired in suchcircumstances that the holder of the legal title may not in good conscience retain the beneficialinterest' " (Sharp v Kosmalski, 40 NY2d 119, 121 [1976], quoting Beatty vGuggenheim Exploration Co., 225 NY 380, 386 [1919]). The necessary elements for theimposition of a constructive trust are: (1) a confidential or fiduciary relationship; (2) a promise;(3) a transfer in reliance on that promise; and (4) unjust enrichment (see Sharp vKosmalski, 40 NY2d at 121; Pereira v Glicker, 61 AD3d 948 [2009]; Nastasi v Nastasi, 26 AD3d 32, 37[2005]). Here, the complaint does not adequately plead a cause of action to impose a constructivetrust on the Bethpage property. While there was a confidential relationship between the plaintiffand Galindo as 50% shareholders in Demo, and Galindo and Madia may have been unjustlyenriched by the alleged diversion of Demo's assets, there was no promise to either the plaintiff orDemo with respect to the Bethpage property and no transfer of that property in reliance on anypromise. Indeed, there is no allegation that either the plaintiff or Demo had any preexistinginterest or expectation of an interest in the Bethpage property. The complaint contains theplaintiff's acknowledgment that Madia borrowed the money using his own credit to pay for thepurchase of the property, and it is not alleged that any assets of Demo or personal funds of theplaintiff were used in the purchase of the property (see Gargano v V.C.&J. Constr.Corp., 148 AD2d 417, 418-419 [1989]).
Inasmuch as the cause of action seeking to impose a constructive trust on the Bethpageproperty was the only cause of action in the complaint that would affect the title to, or thepossession, use or enjoyment of that property, that branch of the defendants' motion which wasto cancel the notice of pendency should have been granted (see CPLR 6514 [b]; Shkolnik v Krutoy, 32 AD3d 536,537 [2006]; Distinctive Custom HomesBldg. Corp. v Esteves, 12 AD3d 559 [2004]). Prudenti, P.J., Fisher, Miller and Lott, JJ.,concur.