| Igneri v Igneri |
| 2015 NY Slip Op 01419 [125 AD3d 813] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Felicia Igneri, Respondent, v Peter Igneri, Jr.,Appellant. |
Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn of counsel), forappellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP,Lake Success, N.Y. (Keith J. Singer of counsel), for respondent.
In an action, inter alia, to impose a constructive trust, the defendant appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County(Rothenberg, J.), dated July 19, 2013, as denied that branch of his motion which waspursuant to CPLR 3211 (a) to dismiss the cause of action to impose a constructive truston certain real property in Brooklyn and rents related to the property.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the defendant's motion which was pursuant to CPLR 3211 (a) todismiss the cause of action to impose a constructive trust on certain real property inBrooklyn and rents related to the property is granted.
The plaintiff commenced this action against her uncle, the defendant, seeking, interalia, to impose a constructive trust on certain real property in Brooklyn and rents relatedto the property. The subject property was previously owned by the plaintiff'snow-deceased grandfather, who deeded it to the defendant. The defendant is the brotherof the plaintiff's father, who is deceased. The plaintiff alleges that, during her father'slifetime, the property was always treated as jointly owned by the defendant and herfather, with the understanding that the plaintiff would inherit her father's interest uponhis death. From the time the plaintiff's grandfather died until her father's death, thedefendant allegedly shared the rental income with her father, who expended substantialfunds to pay taxes and other expenses related to the property, and the plaintiff allegedlycoordinated the rental of the apartments. The defendant moved, inter alia, pursuant toCPLR 3211 (a) to dismiss the constructive trust cause of action. The Supreme Courtdenied that branch of the motion.
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), a court shouldaccept the facts as alleged in the complaint as true, accord the plaintiff the benefit ofevery possible favorable inference, and determine only whether the facts as alleged fitwithin any cognizable legal theory (see Trotta v Ollivier, 91 AD3d 8, 11-12 [2011]; Spector v Wendy, 63 AD3d820, 821 [2009]). In opposition to a motion to dismiss pursuant to CPLR 3211 (a)(7), the plaintiff may submit an affidavit to remedy any defects in the complaint (seeRovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).
In general, a constructive trust may be appropriate in situations " '[w]henproperty has been acquired in such circumstances that the holder of the legal title may notin good conscience [*2]retain the beneficialinterest' " (Sharp v Kosmalski, 40 NY2d 119, 121 [1976], quotingBeatty v Guggenheim Exploration Co., 225 NY 380, 386 [1919]). The necessaryelements for imposition of a constructive trust are (1) a confidential or fiduciaryrelationship, (2) a promise, (3) a transfer in reliance on that promise, and (4) unjustenrichment (see Sharp v Kosmalski, 40 NY2d at 121; Pereira v Glicker, 61 AD3d948 [2009]; Nastasi vNastasi, 26 AD3d 32, 37 [2005]).
Here, contrary to the Supreme Court's determination, the plaintiff's complaint, asamplified by her affidavit, does not adequately plead a cause of action to impose aconstructive trust on the Brooklyn property. While a confidential relationship existsbetween the plaintiff and the defendant as uncle and niece, the complaint does not allegethe existence of a promise between the plaintiff and the defendant, or a transfer inreliance upon a promise between them.
Further, contrary to the Supreme Court's determination, the plaintiff's allegations insupport of a theory that she should be deemed a 50% owner of the Brooklyn property donot adequately plead the elements of a constructive trust. Her claim of entitlement isbased on the laws of inheritance, and must be pursued by the executor or administrator ofher father's estate (seePonnambalam v Sivaprakasapillai, 35 AD3d 571, 573 [2006]; Gaentner v Benkovich, 18AD3d 424, 426 [2005]).
Accordingly, the Supreme Court should have granted that branch of the defendant'smotion which was to dismiss the cause of action to impose a constructive trust on theBrooklyn property and rents related to that property.
The defendant's remaining contentions either need not be reached in light of ourdetermination, or are not properly before the Court. Skelos, J.P., Miller, Hinds-Radix andLaSalle, JJ., concur.