| Rowe v Kingston |
| 2012 NY Slip Op 02664 [94 AD3d 852] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Frederick Rowe, Respondent, v Eva G. Kingston et al.,Appellants. |
—[*1] Ragano & Ragano, Ozone Park, N.Y. (John J. Lawless of counsel), for respondent.
In an action to impose a constructive trust upon certain real property, the defendants appealfrom a judgment of the Supreme Court, Queens County (Kugelman, Ct. Atty. Ref.), enteredNovember 12, 2010, which, upon a decision of the same court dated November 30, 2009, madeafter a nonjury trial, is in favor of the plaintiff and against them, imposing a constructive trust onthe subject property.
Ordered that the judgment is affirmed, with costs.
The plaintiff owned a two-family home and resided in it with the defendants, who are hisaunt and uncle. In 1999, the plaintiff transferred title to the two-family home to his aunt for noconsideration, with the understanding that she would re-deed the property back to him upon hisrequest. The plaintiff's aunt refinanced the property in her name, although the plaintiff, as pertheir agreement, continued to collect rent and make the mortgage payments. When the plaintiffallegedly failed to make timely mortgage payments, his aunt assumed direct payment of themortgage. By then, the plaintiff had moved out of the property. However, his aunt and his unclecontinued to live there. The defendants took over paying the utility bills and other maintenance ofthe property, collected rent from the other tenants, and claimed a tax credit for the mortgagepayments. In 2003, the aunt added the uncle to the deed, at which time the defendants refinancedthe mortgage on the property, drawing on its equity. Following failed discussions between theparties regarding the return of the property to the plaintiff, the plaintiff commenced this actionand, after a nonjury trial before a referee, a constructive trust was imposed in his favor.
In reviewing a determination made after a nonjury trial, the power of this Court is as broad asthat of the trial court, and we may render a judgment we find warranted by the facts, bearing inmind that in a close case, the trial judge had the advantage of seeing the witnesses (seeNorthern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499[1983]; Parr v Ronkonkoma RealtyVenture I, LLC, 65 AD3d 1199, 1201 [2009]; O'Brien v Dalessandro, 43 AD3d 1123, 1123-1124 [2007]).
A constructive trust is an equitable remedy (see Simonds v Simonds, 45 NY2d 233,241 [1978]), and may be imposed "[w]hen property has been acquired in such circumstances thatthe holder of the legal title may not in good conscience retain the beneficial interest" (Poupisv Brown, 90 [*2]AD3d 881, 882 [2011], quoting Sharp vKosmalski, 40 NY2d 119, 121 [1976] [internal quotation marks omitted]). In general, toimpose a constructive trust, four factors must be established: (1) a confidential or fiduciaryrelationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (seeSharp v Kosmalski, 40 NY2d at 121). However, as these elements serve only as a guideline,a constructive trust may still be imposed even if all of the elements are not established (seeSimonds v Simonds, 45 NY2d at 241; Marini v Lombardo, 79 AD3d 932, 933 [2010]).
Here, the Supreme Court properly found that the plaintiff satisfied the elements necessary toimpose a constructive trust. As familial relatives, the parties shared a confidential relationship(see Nockelun v Sawicki, 197 AD2d 507 [1993]). The defendants did not dispute thatthey promised to re-deed the property back to the plaintiff at a later date, and the record does notsupport their further contentions that this promise was conditioned on the plaintiff's timelypayment of the mortgage or that the plaintiff habitually made late payments on the mortgage.Furthermore, the defendants' argument that, in effect, their investment in the property gave theman ownership interest, is without merit. Although the defendants were responsible for the careand maintenance of the property for eight years, they were living on the premises together withtheir family, collecting rent, and reaping the tax and home equity benefits associated with owninga home (cf. Marini v Lombardo, 79 AD3d at 934; Bedell v Bedell, 160 AD2d702, 704 [1990]).
The defendants' remaining contention regarding unclean hands is without merit.
Accordingly, there is no basis to disturb the Supreme Court's judgment imposing aconstructive trust in favor of the plaintiff. Mastro, A.P.J., Hall, Lott and Sgroi, JJ., concur.