| Mazzei v Kyriacou |
| 2016 NY Slip Op 03722 [139 AD3d 823] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| Michael Mazzei, Appellant, v Nicole Kyriacou,Also Known as Nicole Debonis, et al., Defendants, and U.S. Bank National Association,Intervenor-Respondent. |
Kenneth J. Weinstein, P.C., Garden City, NY (Michael J. Langer of counsel), forappellant.
Solomon & Siris, P.C., Garden City, NY (Bill Tsevis of counsel), forintervenor-defendant-respondent.
In an action, inter alia, to impose a constructive trust on real property, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, NassauCounty (J. Murphy, J.), dated July 28, 2014, as denied that branch of his motion whichwas pursuant to CPLR 3211 (a) (4) to dismiss the answer with counterclaim of theintervenor-defendant, U.S. Bank National Association, and granted those branches of thecross motion of the intervenor-defendant, U.S. Bank National Association, which werefor summary judgment dismissing the sixth cause of action seeking to impose aconstructive trust on real property, and to cancel the notice of pendency filed against thatproperty.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff made an unsecured loan in the sum of $900,000 to the defendant AllIsland Equity, Inc. (hereinafter All Island), a corporation owned by his nephew, thedefendant Thomas Debonis. The loan was never repaid, and a portion of the loaned fundsallegedly was improperly used to purchase real property titled solely in the name ofDebonis's wife, the defendant Nicole Kyriacou. The subject property was purchased forapproximately $970,000, of which, $650,000 was financed by a mortgage loan assignedto U.S. Bank National Association (hereinafter U.S. Bank). U.S. Bank subsequentlycommenced an action to foreclose on the mortgage.
Meanwhile, the plaintiff obtained a money judgment against All Island and Debonis,and thereafter commenced the instant action against Kyriacou, Debonis, and All IslandEquity, alleging, in his first five causes of action, that All Island and Debonisfraudulently conveyed the loan proceeds to Kyriacou, and seeking, in the sixth cause ofaction, to impose a constructive trust on the subject real property. U.S. Bank was grantedleave to intervene in the action, and filed an answer with a counterclaim. The plaintiffmoved, inter alia, pursuant to CPLR 3211 (a) (4) to dismiss the answer withcounterclaim. U.S. Bank cross-moved, inter alia, for summary judgment dismissing thesixth cause of action, and to cancel the notice of pendency. The Supreme Court deniedthat branch of the plaintiff's motion which was pursuant to CPLR 3211 (a) (4) to dismissthe answer with counterclaim, and granted those branches of U.S. Bank's cross motionwhich were for summary [*2]judgment dismissing thesixth cause of action and to cancel the notice of pendency.
"Pursuant to CPLR 3211 (a) (4), a court has broad discretion in determining whetheran action should be dismissed based upon another pending action where there is asubstantial identity of the parties, the two actions are sufficiently similar, and the reliefsought is substantially the same" (DAIJ, Inc. v Roth, 85 AD3d 959, 959 [2011]; seeCPLR 3211 [a] [4]; Whitney v Whitney, 57 NY2d 731, 732 [1982]; Cherico, Cherico & Assoc. vMidollo, 67 AD3d 622, 623 [2009]; Liebert v TIAA-CREF, 34 AD3d 756, 757 [2006]). Here,the Supreme Court did not improvidently exercise its discretion in denying that branch ofthe plaintiff's motion which was pursuant to CPLR 3211 (a) (4) to dismiss the answerwith counterclaim, on the ground that it raised issues duplicative of U.S. Bank'sforeclosure action, since the two actions were not sufficiently similar and sought distinctrelief (see generally Jin ShengHe v Sing Huei Chang, 83 AD3d 788, 790 [2011]; Wharry v Lindenhurst Union FreeSchool Dist., 65 AD3d 1035, 1036-1037 [2009]; Lopez v Shaughnessy,260 AD2d 551, 552 [1999]).
U.S. Bank demonstrated its prima facie entitlement to judgment as a matter of lawdismissing the sixth cause of action, seeking to impose a constructive trust on the subjectreal property. "The elements of a cause of action to impose a constructive trust are (1) theexistence of a confidential or fiduciary relationship, (2) a promise, (3) a transfer inreliance thereon, and (4) unjust enrichment" (Quadrozzi v Estate of Quadrozzi, 99 AD3d 688, 691[2012]; see Simonds v Simonds, 45 NY2d 233, 241 [1978]; Sharp vKosmalski, 40 NY2d 119, 121 [1976]; Rowe v Kingston, 94 AD3d 852, 853 [2012]; Ewart v Ewart, 78 AD3d992, 993 [2010]). Here, the plaintiff failed to allege any promise, either express orimplied, relating to the subject property, or any transfer in reliance on any promiserelating to the property (see Liselli v Liselli, 263 AD2d 468, 469 [1999];Meehan v Meehan, 227 AD2d 268 [1996]; Fodiman v Zoberg, 182 AD2d493, 494 [1992]; cf. Simonds v Simonds, 45 NY2d at 240). In opposition to U.S.Bank's prima facie showing, the plaintiff failed to raise a triable issue of fact. Contrary tothe plaintiff's contention, summary judgment was not premature, as the discovery hesought to obtain regarding the mortgage loan obtained by Kyriacou was irrelevant to themerits of his constructive trust cause of action (see generally Jannetti v Whelan, 131 AD3d 1209, 1210[2015]; Burlington Ins. Co. vCasur Corp., 123 AD3d 965, 965-966 [2014]). Accordingly, the Supreme Courtproperly granted that branch of U.S. Bank's cross motion which was for summaryjudgment dismissing the sixth cause of action.
Since the sixth cause of action was the only cause of action potentially affecting titleto real property, the Supreme Court, upon granting that branch of U.S. Bank's crossmotion which was for summary judgment dismissing that cause of action, properlygranted that branch of the cross motion which was to cancel the notice of pendency(see generally CPLR 6501; Coleman v Coker, 66 AD3d 812, 814 [2009]). Contrary tothe plaintiff's contention, the remaining causes of action did not support the filing of anotice of pendency, since they concerned the conveyance of the loan proceeds from AllIsland to Kyriacou, and did not allege a fraudulent conveyance of any interest in realproperty (cf. Joslin v Lopez, 309 AD2d 837, 838 [2003]; Resnick vDoukas, 261 AD2d 375 [1999]; Marine Midland Bank v Murkoff, 120 AD2d122 [1986]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dillon, Balkinand Sgroi, JJ., concur.