| Tyree v Henn |
| 2013 NY Slip Op 05895 [109 AD3d 906] |
| September 18, 2013 |
| Appellate Division, Second Department |
| Caroline P. Tyree, Appellant, v Donald E. Henn,Jr., Defendant and Third-Party Plaintiff-Respondent. Samuel J. Raffa et al., Third-PartyDefendants-Appellants. (Appeal Nos. 1 and 3.) Caroline P. Tyree, Plaintiff, v Donald E.Henn, Jr., Defendant and Third-Party Plaintiff-Respondent. Samuel J. Raffa et al.,Third-Party Defendants-Appellants. (Appeal No. 2.) |
—[*1] Kutner & Gurlides, Mineola, N.Y. (Stephen D. Kutner of counsel), for defendantthird-party plaintiff-respondent.
In an action for a divorce and ancillary relief, (1) the plaintiff and the third-partydefendants appeal from a decision of the Supreme Court, Suffolk County (Garguilo, J.),dated December 2, 2011, made after a nonjury trial, (2) the third-party defendants appealfrom a judgment of the same court entered February 9, 2012, which, upon the decision, isin favor of the defendant third-party plaintiff and against them, imposing a constructivetrust upon certain real property in the sum of $58,500, and (3) the plaintiff and thethird-party defendants appeal, as limited by their brief, from stated portions of an order ofthe same court dated April 12, 2012, which, inter alia, denied that branch of thethird-party defendants' motion which was for an award of costs, disbursements, and areasonable attorney's fee.
Ordered that the appeals from the decision dated December 2, 2011, are dismissed, asno appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100AD2d 509 [1984]); and it is further,
Ordered that the appeal by the plaintiff from the order dated April 12, 2012, isdismissed, as she is not aggrieved thereby (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d144, 156-157 [2010]); and it is further,[*2]
Ordered that the judgment is affirmed; and it isfurther,
Ordered that the order dated April 12, 2012, is affirmed insofar as appealed from bythe third-party defendants; and it is further,
Ordered that one bill of costs is awarded to the defendant third-party plaintiff.
Donald E. Henn, Jr., was, at all relevant times, the son-in-law of Samuel J. Raffa andPatricia Raffa (hereinafter together the Raffas). Henn was married to the Raffas'daughter, Caroline P. Tyree, and the couple lived together with Tyree's four children in ahouse that they had been renting. Henn and Tyree wanted to purchase a house forthemselves, but they did not have enough money and they were unable to obtain amortgage. The Raffas offered to help. The Raffas contributed some of their own moneyto certain sums contributed individually by Henn and Tyree, and purchased a residentialproperty (hereinafter the subject premises) solely in the Raffas' name. The Raffaspurchased the subject premises so that Henn, and Tyree and her four children, could livethere as a family. Shortly thereafter, however, Henn and Tyree separated. Henn neverresided in the subject premises.
Tyree commenced this action for a divorce and ancillary relief, and Henncommenced a third-party action against the Raffas seeking to impose a constructive trustupon the subject premises in the sum of $58,500, the amount that he allegedlycontributed to its purchase. In a judgment entered February 9, 2012, after a nonjury trial,the Supreme Court imposed a constructive trust upon the premises in the sum of $58,500.The Raffas appeal.
In reviewing a determination made after a nonjury trial, the power of this Court is asbroad as that of the trial court, and we may render a judgment we find warranted by thefacts, bearing in mind that in a close case, the trial court had the advantage of seeing andhearing the witnesses (see Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; Marini v Lombardo, 79 AD3d 932, 933 [2010]).
"A constructive trust is an equitable remedy and its purpose is to prevent unjustenrichment" (Marini v Lombardo, 79 AD3d at 933 [citation omitted]; see Henning v Henning, 103AD3d 778, 779-780 [2013]). To obtain the remedy of a constructive trust, a partygenerally is required to demonstrate four factors: (1) a confidential or fiduciaryrelationship, (2) a promise, (3) a transfer in reliance thereon, 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]; Ewart v Ewart, 78 AD3d992, 993 [2010]). However, these factors, or elements, serve only as a guideline, anda constructive trust may still be imposed even if all four elements are not established(see Simonds v Simonds, 45 NY2d 233, 241 [1978]; Henning vHenning, 103 AD3d at 780; Marini v Lombardo, 79 AD3d at 933; see also Rocchio v Biondi, 40AD3d 615, 616 [2007]).
Here, the Supreme Court correctly found that the first element relevant to imposing aconstructive trust was satisfied, as Henn and the Raffas were related through marriageand they pooled their resources to purchase the subject premises (see Marini vLombardo, 79 AD3d at 933-934; Reiner v Reiner, 100 AD2d 872, 874[1984]; cf. Henning v Henning, 103 AD3d at 780; Squiciarino v Squiciarino, 35AD3d 844, 845 [2006]). Henn satisfied the second element by demonstrating thatthe Raffas implicitly promised to convey the premises to him and Tyree (cf. Reiner vReiner, 100 AD2d at 873-874; cf. also Henning v Henning, 103 AD3d at780; Marini v Lombardo, 79 AD3d at 934). He satisfied the third element, whichrequires a showing that he acted in reliance on the promise, by establishing that he gave$58,500 to Samuel J. Raffa, and that Samuel J. Raffa used that money to purchase thepremises (cf. Henning v Henning, 103 AD3d at 780; Marini v Lombardo,79 AD3d at 934). As for the fourth element, which requires a showing of unjustenrichment flowing from the breach of the promise, the evidence adduced at trialestablished that Henn never moved into the premises or acquired a legal interest therein.To the contrary, he and Tyree separated the very month that the premises were acquiredby the Raffas, and Tyree commenced this divorce action just a few months later. TheRaffas remained the sole owners of the premises, and they did not return Henn's $58,500.In view of this evidence, there is no basis upon which to disturb the Supreme Court'sdetermination (see Mei YunChen v Mei Wan Kao, 97 AD3d 730 [2012]; Byrd v Brown, 208 AD2d[*3]582 [1994]).
Contrary to the Raffas' contention, the Supreme Court correctly determined that,under the circumstances here, there was no need for an accounting (cf. A.G. Homes, LLC vGerstein, 52 AD3d 546, 548-549 [2008]).
The Raffas' remaining contentions are without merit. Balkin, J.P., Hall, Lott andSgroi, JJ., concur.