| Henderson v Thorpe |
| 2010 NY Slip Op 04335 [73 AD3d 978] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Howard Henderson, Respondent, v Latanya Thorpe,Appellant. |
—[*1]
In an action to impose a constructive trust upon certain real property, the defendant appealsfrom an order of the Supreme Court, Queens County (Rosen, R.), dated March 31, 2009, which,after a nonjury trial, inter alia, directed her to execute a deed conveying her interest in the subjectreal property to the plaintiff.
Ordered that on the Court's own motion, the notice of appeal is treated as an application forleave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed, with costs.
In order to obtain the remedy of a constructive trust, a plaintiff generally is required todemonstrate four factors: (1) a fiduciary or confidential relationship between the parties, (2) apromise, (3) a transfer of some asset in reliance upon the promise, and (4) unjust enrichmentflowing from the breach of the promise (see McGrath v Hilding, 41 NY2d 625, 629[1977]; Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Squiciarino v Squiciarino, 35 AD3d844, 845 [2006]). To achieve equity and avoid unjust enrichment, the courts apply thesefactors flexibly rather than rigidly (see Simonds v Simonds, 45 NY2d 233, 241 [1978];Moak v Raynor, 28 AD3d 900,902 [2006]; Byrd v Brown, 208 AD2d 582, 583 [1994]; Crown Realty Co. v CrownHgts. Jewish Community Council, 175 AD2d 151 [1991]).
Contrary to the defendant's contention, the evidence adduced at trial amply supported theSupreme Court's finding that all of the elements for the imposition of a constructive trust hadbeen satisfied, since there was proof that a relationship of trust and dependence existed betweenthe plaintiff's decedent and the defendant, that the defendant promised to hold title to the subjectproperty and to reconvey title to the decedent when requested, that the decedent transferred titleto the defendant in reliance on the promise, and that the defendant thereafter refused to reconveytitle and instead mortgaged the property and kept a portion of the proceeds for her personal use.In view of this evidence, there is no basis upon which to disturb the Supreme Court's order (see e.g. Watson v Pascal, 65 AD3d1333 [2009]; Squiciarino vSquiciarino, 35 AD3d 844 [2006]; Byrd v Brown, 208 AD2d 582 [1994]).Mastro, J.P., Covello, Eng and Belen, JJ., concur.