| Depena v Shocker |
| 2011 NY Slip Op 03203 [83 AD3d 885] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Douglas Depena, Respondent, v Karen Shocker,Appellant. |
—[*1] Veneruso, Curto, Schwartz & Curto, LLP, Yonkers, N.Y. (Joseph R. Curto of counsel), forrespondent.
In an action, inter alia, to impose a constructive trust upon certain real property, thedefendant appeals (1) from a decision of the Supreme Court, Westchester County (Loehr, J.),dated March 10, 2010, and (2), as limited by her brief, from so much of a judgment of the samecourt entered April 8, 2010, as, after a nonjury trial on the complaint, and upon the decision, andupon a jury verdict on her counterclaims, is in favor of the plaintiff and against her on the firstcause of action, imposing a constructive trust upon the subject property and directing theWestchester County Clerk to accept for filing a deed transferring the property from her to her andthe plaintiff as tenants in common, and is in favor of her and against the plaintiff on her secondcounterclaim in the sum of only $5,000.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law and the facts, thefirst cause of action is dismissed, the defendant is awarded the sum of $10,000 on her secondcounterclaim, and the matter is remitted to the Supreme Court, Westchester County, for the entryof an amended judgment; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff and the defendant lived together in a committed relationship for 25 years andresided in a house owned by the defendant. In 1994, the defendant purchased an adjacentproperty (hereinafter the rental property) and rented it to tenants. Except for a three-year period,from 2001 through 2003, the plaintiff collected the rents and paid the expenses associated withthe rental property.
In 2007, the parties' relationship ended, and the plaintiff moved out. The plaintiffcommenced this action, inter alia, to impose a constructive trust on the rental property, allegingthat the defendant had promised to give him half the property, and that, based on that promise, hehad [*2]contributed considerable sums of money for the purchase,renovation, and maintenance of the rental property. The defendant counterclaimed, alleging,among other things, that the plaintiff owed her money from the rental income he had collectedbut had failed to give her.
A trial was held, with the Supreme Court determining the plaintiff's causes of action and ajury determining the counterclaims. Following the trial, the Supreme Court concluded, inter alia,that a constructive trust should be imposed on the rental property. The jury found, among otherthings, that the plaintiff owed the defendant $10,000 in collected rents. The judgment entered bythe Supreme Court, however, awarded the defendant the sum of only $5,000. The defendantappeals.
On an appeal from a judgment after a nonjury trial, this Court's power to review the evidenceis as broad as that of the trial court, and this Court may render the judgment it finds warranted bythe facts, giving due regard to the trial court, which had the advantage of assessing the credibilityof the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford,60 NY2d 492, 499 [1983]; Sabetfard vDjavaheri Realty Corp., 40 AD3d 838, 839 [2007]; Stojowski v D'Sa, 28 AD3d 645, 645 [2006]). Here, the SupremeCourt's determination that the plaintiff established all the elements of a constructive trust is notsupported by the record.
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' " (Sharp v Kosmalski, 40 NY2d 119, 121 [1976], quoting Beatty vGuggenheim Exploration Co., 225 NY 380, 386 [1919]; see Matter of Wieczorek,186 AD2d 204, 205 [1992]). The elements of a constructive trust are: (1) a confidential orfiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment(see Sharp v Kosmalski, 40 NY2d at 121; Cruz v McAneney, 31 AD3d 54, 58-59 [2006]; Nastasi v Nastasi, 26 AD3d 32, 37[2005]; Levy v Moran, 270 AD2d 314, 315 [2000]).
The evidence submitted by the plaintiff did not establish that, in reliance on the defendant'spromise that he would become the owner of half of the rental property, he contributedconsiderable sums of money towards the purchase, renovation, and maintenance of that property,or that he did considerable construction work on the premises. The plaintiff did not submit anyevidence, such as bills or receipts, demonstrating the extent of his work, nor did he provide anydocumentary proof that the checks reflected on the list he submitted into evidence were related tothe rental property. Moreover, the plaintiff failed to submit evidence establishing that thedefendant had been unjustly enriched. The plaintiff lived with the defendant rent-free for morethan 20 years. He also maintained two offices, one at the defendant's residence and the other atthe rental property, and did not pay rent on either of those offices. Even if we were to accept theplaintiff's claims as to his contributions, the scope of those contributions could not be attributedto more than "the give and take of the [parties'] relationship" (Sylvester v Sbarra, 268AD2d 424, 424 [2000]; see Terrille v Terrille, 171 AD2d 906 [1991]; Vail-Beserini vBeserini, 237 AD2d 658 [1997]).
The jury awarded the defendant $10,000 on her counterclaim for reimbursement of the rentalincome the plaintiff had collected but had failed to give her. Since we have concluded that theplaintiff was not entitled to a constructive trust that would result in his joint ownership of therental property, the Supreme Court's reduction of the jury's award from $10,000 to $5,000 wasnot warranted.
In light of our determination, we need not reach the defendant's remaining contentions.Prudenti, P.J., Dillon, Balkin and Sgroi, JJ., concur.