| Ewart v Ewart |
| 2010 NY Slip Op 08697 [78 AD3d 992] |
| November 23, 2010 |
| Appellate Division, Second Department |
| James L. Ewart, Jr., Appellants, v James L. Ewart III et al.,Respondents. |
—[*1] Lawrence H. Silverman, Commack, N.Y., for respondents.
In an action, inter alia, to impose a constructive trust upon certain real property, the plaintiffsappeal from an order of the Supreme Court, Suffolk County (Farneti, J.), dated June 30, 2009,which granted the defendants' motion pursuant to CPLR 6514 to cancel a notice of pendencyfiled by the plaintiffs against the subject property.
Ordered that the order is affirmed, with costs.
The plaintiffs commenced this action, inter alia, to impose a constructive trust upon certainreal property (hereinafter the property) and filed a notice of pendency against that property. Thedefendants moved pursuant to CPLR 6514 to cancel that notice of pendency, arguing that it hadnot been properly filed because the plaintiffs failed to state a cause of action to impose aconstructive trust upon the property. The Supreme Court granted the defendants' motion, and theplaintiffs appeal. We affirm.
A notice of pendency is authorized to be filed in an action seeking a judgment that wouldaffect the title to, or possession, use, or enjoyment of, real property (see CPLR 6501;5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 320-321 [1984]; Nastasi v Nastasi, 26 AD3d 32, 35[2005]). An action to impose a constructive trust upon real property qualifies as one in which thefiling of a notice of pendency is allowed (see Morice v Garritano, 62 AD3d 971 [2009]; Nastasi vNastasi, 26 AD3d at 36).
Cancellation of a notice of pendency can be granted in the exercise of the inherent power ofthe court where the filing of the notice fails to comply with CPLR 6501 (see 5303 RealtyCorp. v O & Y Equity Corp., 64 NY2d at 320-321; Nastasi v Nastasi, 26 AD3d at36; Rose v Montt Assets, 250 AD2d 451, 451-452 [1998]). "When the court entertains amotion to cancel a notice of pendency in its inherent power to analyze whether the pleadingcomplies with CPLR 6501, it neither assesses the likelihood of success on the merits norconsiders material beyond the pleading itself; 'the court's analysis is to be limited to thepleading's face' " (Nastasi v Nastasi, 26 AD3d at 36, quoting 5303 Realty Corp. v O& Y Equity Corp., 64 NY2d at 321).[*2]
"In general, though as an equitable doctrine itsapplication to particular circumstances is susceptible of some flexibility, to establish aconstructive trust there must be provided: (1) a confidential or fiduciary relation, (2) a promise,express or implied, (3) a transfer made in reliance on that promise, and (4) unjust enrichment"(Bankers Sec. Life Ins. Socy. v Shakerdge, 49 NY2d 939, 940 [1980]; see Sharp vKosmalski, 40 NY2d 119, 121 [1976]). Here, the complaint fails to state a cause of action toimpose a constructive trust upon the property because it does not contain factual allegationsdemonstrating an express or implied promise and a transfer made in reliance thereon (seegenerally Sharp v Kosmalski, 40 NY2d at 122; Reiner v Reiner, 100 AD2d 872, 874[1984]).
The plaintiffs' remaining contentions are without merit, or are not properly before this Court.
Accordingly, the Supreme Court properly granted the defendants' motion to cancel the noticeof pendency filed against the property. Covello, J.P., Dickerson, Belen and Lott, JJ., concur.