| Poupis v Brown |
| 2011 NY Slip Op 09298 [90 AD3d 881] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Dean Poupis, Jr., Appellant, v Jennifer Brown,Respondent. |
—[*1] Courten & Villar, PLLC, Hauppauge, N.Y. (Karyn A. Villar of counsel), forrespondent.
In an action for the return of gifts made in contemplation of marriage, the plaintiff appealsfrom an order of the Supreme Court, Suffolk County (Martin, J.), dated March 7, 2011, whichdenied his motion for summary judgment on his causes of action pursuant to Civil Rights Law§ 80-b and dismissing the defendant's counterclaims.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiff's motion which was for summary judgment dismissing the defendant'ssecond counterclaim, which sought to impose a constructive trust, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed, without costsor disbursements.
The plaintiff commenced this action against the defendant for the return of an engagementring and an interest in real property located in West Islip (hereinafter the first West Islipproperty), which the plaintiff allegedly gave to the defendant in contemplation of a marriage thatnever occurred.
In opposition to the plaintiff's prima facie showing of his entitlement to judgment as a matterof law on his causes of action pursuant to Civil Rights Law § 80-b (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851 [1985]), the defendant raised triable issues of factas to whether the engagement ring and the interest in the first West Islip property were gifts givensolely in contemplation of marriage (seeLipschutz v Kiderman, 76 AD3d 178, 185-186 [2010]; Northern Trust, NA v Delley, 60 AD3d1345 [2009]). Accordingly, the Supreme Court properly denied that branch of the plaintiff'smotion which was for summary judgment on his causes of action pursuant to Civil Rights Law§ 80-b. As there are triable issues of fact surrounding the conveyance of the interest in thefirst West Islip property to the defendant, the Supreme Court properly denied that branch of theplaintiff's motion which was for summary judgment dismissing the defendant's firstcounterclaim, which sought an order directing the sale of that property.
However, the Supreme Court erred in denying that branch of the plaintiff's motion [*2]which was for summary judgment dismissing the defendant'ssecond counterclaim, which sought to impose a constructive trust on a second parcel of realproperty, also located in West Islip. A constructive trust may be imposed " '[w]hen property hasbeen acquired in such circumstances that the holder of the legal title may not in good conscienceretain the beneficial interest' " (Sharp v Kosmalski, 40 NY2d 119, 121 [1976], quotingBeatty v Guggenheim Exploration Co., 225 NY 380, 386 [1919]). The four requirementsfor the imposition of a constructive trust are: (1) a confidential or fiduciary relationship, (2) apromise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Sharp vKosmalski, 40 NY2d at 121; Matterof Noble, 31 AD3d 643, 644-645 [2006]).
Here, in opposition to the plaintiff's prima facie showing of his entitlement to judgment as amatter of law dismissing the defendant's second counterclaim (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851 [1985]), the defendant failed to raise a triable issue of fact asto the elements of a promise, a transfer in reliance thereon, and unjust enrichment (see Moramarco v Ruggiero, 55 AD3d694 [2008]; Osborne v Tooker,36 AD3d 778 [2007]; Matter of Noble, 31 AD3d at 645).
In reaching this determination, we have not considered matter dehors the record (see Krzyanowski v Eveready Ins. Co.,28 AD3d 613 [2006]). Dillon, J.P., Angiolillo, Dickerson and Hall, JJ., concur.