Keane v. Keane

193 A.D.3d 838

148 N.Y.S.3d 145

Christopher P. KEANE, Jr., appellant,

v.Kristine KEANE, et al., respondents.

2020–02136, 2020–04609, (Index 50975/18)

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 22, 2021

April 14, 2021

Keane & Marlowe LLP, New York, N.Y. (Mary Ann C. Marlowe of counsel), for appellant.

McCabe & Mack, LLP, Poughkeepsie, N.Y. (Richard R. DuVall and Trevor J. Halsey of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action, inter alia, to impose a constructive trust on real property, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated February 3, 2020, and (2) a judgment of the same court dated June 4, 2020. The order granted those branches of the defendants' motion which were for summary judgment dismissing the complaint and on their first counterclaim, and denied the plaintiff's cross motion for summary judgment on the first, second, and fourth causes of action. The judgment, insofar as appealed from, upon the order, is in favor of the defendants and against the plaintiff dismissing the complaint and on the defendants' first counterclaim, declaring their remainder interest in the subject properties.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

The plaintiff and his wife, now deceased (hereinafter the decedent), purchased, as relevant here, five properties in Amenia, New York, during their marriage. All of the properties were either purchased in the decedent's name or conveyed to the decedent. According to the plaintiff, this was done to "protect the couple from any potential liabilities that might arise" by virtue of the plaintiff's business ventures and law practice.

In 2014, the decedent executed the operative will, devising the plaintiff a life estate in all of the subject properties with the remainder interests going to the defendants, who are the plaintiff's nephew and his wife. After the decedent died and the plaintiff allegedly learned for the first time of the contents of the decedent's will, the plaintiff commenced the instant action against the defendants alleging unjust enrichment, seeking to impose a constructive trust on the subject properties, and for a declaration pursuant to RPAPL article 15 of his fee simple ownership interest in the properties, or alternatively, seeking an equitable lien. The defendants answered the complaint and asserted, inter alia, a counterclaim (hereinafter the first counterclaim) to declare pursuant to RPAPL article 15 their remainder interest in the subject properties.

The defendants subsequently moved for summary judgment dismissing the complaint and on their first counterclaim. The plaintiff cross-moved for summary judgment on the causes of action alleging unjust enrichment, to impose a constructive trust upon the properties, and for a declaration pursuant to RPAPL article 15 of his fee simple interest. By order dated February 3, 2020, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint and on their first counterclaim, and denied the plaintiff's cross motion. Thereafter, judgment was entered upon the order, inter alia, in favor of the defendants and against the plaintiff, dismissing the complaint and declaring the defendants' remainder interest in the properties. The plaintiff appeals.

Generally, a constructive trust may be imposed when " ‘property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest’ " ( Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721, quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378 ). To impose a constructive trust upon real property, a plaintiff must prove (1) a confidential or fiduciary relationship, (2) a promise, express or implied, (3) a transfer in reliance on that promise, and (4) unjust enrichment (see Sharp v. Kosmalski, 40 N.Y.2d at 121, 386 N.Y.S.2d 72, 351 N.E.2d 721 ; Matter of Azzinaro, 13 A.D.3d 618, 786 N.Y.S.2d 343 ). "However, the four factors are not an ‘unyielding formula which limits a court's freedom to fashion this equitable remedy’ and the requirements are not to be rigidly applied" ( Byrd v. Brown, 208 A.D.2d 582, 583, 617 N.Y.S.2d 192, quoting Bontecou v. Goldman, 103 A.D.2d 732, 733, 477 N.Y.S.2d 192 ).

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action to impose a constructive trust and on their counterclaim for a declaration of their remainder interest in the property. The defendants demonstrated, prima facie, through disclosed email communications between the plaintiff, the...