| Watson v Pascal |
| 2009 NY Slip Op 06833 [65 AD3d 1333] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Carol Watson, Respondent, v Lenox Pascal, Appellant, etal., Defendant. |
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In an action, inter alia, in effect, to impose a constructive trust on certain real property, thedefendant Lenox Pascal appeals from a judgment of the Supreme Court, Westchester County(Loehr, J.), dated May 5, 2008, which, upon a decision of the same court dated February 15,2008, made after a nonjury trial, adjudged that the plaintiff and the defendant Lenox Pascal ownthe subject real property as joint tenants, and directed the partition and sale of the real property.
Ordered that the judgment is modified, on the law, by deleting the provision thereofadjudging that the plaintiff and the defendant Lenox Pascal own the subject real property as jointtenants, and substituting therefor a provision adjudging that the plaintiff and the defendant LenoxPascal own the real property as tenants in common; as so modified, the judgment is affirmed,without costs or disbursements.
The plaintiff and the defendant Lenox Pascal were in a long-term relationship and are theparents of a daughter born in 1988. In 1991, while the plaintiff and Pascal resided together,Pascal was the high bidder at a foreclosure auction of certain real property, and the resultingmemorandum of sale listed Pascal and the plaintiff as the purchasers. Pascal paid the 10% downpayment, and he and the plaintiff obtained mortgage financing as coborrowers. When themortgage was obtained, Pascal was unemployed and the plaintiff was employed in a nursinghome. At the closing on the subject real property, the referee's deed was issued to the plaintiffand Pascal as co-owners. At the request of Pascal, the plaintiff executed a deed transferring titleto Pascal. The plaintiff paid for remodeling to enable the parties to rent the third floor of theresidence, and she paid the mortgage for the next seven years. Pascal started paying themortgage in 1999, and locked the plaintiff out of the premises in 2002. The plaintiff commencedthis action, inter alia, in effect, to impose a constructive trust.
"[A] constructive trust may be imposed '[w]hen property has been acquired in suchcircumstances that the holder of the legal title may not in good conscience retain the beneficialinterest' (Beatty v Guggenheim Exploration Co., 225 NY 380, 386)" (Sharp vKosmalski, 40 NY2d 119, 121 [1976]). "The necessary elements for the imposition of aconstructive trust are: (1) a confidential or fiduciary relationship; (2) a promise; (3) a transfer inreliance on that promise; and (4) unjust enrichment (see Sharp v Kosmalski, 40 NY2d at121)" (Maiorino v Galindo, 65 AD3d 525, 526-527 [2009]; see A.G. Homes, LLC vGerstein, 52 AD3d 546 [2008]; Osborne v Tooker, 36 AD3d 778 [2007]). Theremedy is flexible and a constructive [*2]trust may be imposedeven without an express promise where, given reliance upon the confidential relationship of theparties, "a promise may be implied or inferred from the very transaction itself" (Sharp vKosmalski, 40 NY2d 119, 122 [1976]). The trial court found the plaintiff was the morecredible witness and the testimony supports the imposition of the constructive trust.
Partition was properly directed as an equitable remedy for Pascal's unjust enrichment(see Hornett v Leather, 145 AD2d 814 [1988]). However, there was no basis to impose ajoint tenancy as the form of ownership by the parties (see Matter of Vadney, 83 NY2d885, 886 [1994]).
Pascal's remaining contentions are without merit. Spolzino, J.P., Miller, Angiolillo andDickerson, JJ., concur.