Monterosso v. Garguilo

181 A.D.3d 586

117 N.Y.S.3d 584 (Mem)

Steven MONTEROSSO, et al., Appellants,

v.Elaine GARGUILO, et al., Respondents.

2017–02862

Index No. 150750/16

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

Argued—November 1, 2019

March 4, 2020

Law Office of Nicholas M. Moccia, P.C., Staten Island, NY, for appellants.

Law Offices of Howard M. File P.C., Staten Island, N.Y. (Andrew A. Rafter of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, JOHN M. LEVENTHAL, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action, inter alia, for declaratory relief and to impose a constructive trust upon certain real property, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Desmond A. Green, J.), dated March 7, 2017. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action, inter alia, to impose a constructive trust upon certain real property to which they lost title in a previous foreclosure action, and for a judgment declaring that the referee's deed transferring title to the property to the defendants was void as the product of a usurious loan transaction. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, and the Supreme Court granted the motion. The plaintiffs appeal.

"Generally, a constructive trust may be imposed ‘[w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest’ " ( Ning Xiang Liu v. Al Ming Chen , 133 A.D.3d 644, 644, 19 N.Y.S.3d 565, quoting Sharp v. Kosmalski , 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721 ). " ‘The elements of a cause of action to impose a constructive trust are (1) the existence of a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment’ " ( Mazzei v. Kyriacou , 139 A.D.3d 823, 824, 33 N.Y.S.3d 291, quoting Quadrozzi v. Estate of Quadrozzi , 99 A.D.3d 688, 691, 952 N.Y.S.2d 74 ). However, these elements "serve only as a guideline," and "a constructive trust may still be imposed even if all of the elements are not established" ( Rowe v. Kingston , 94 A.D.3d 852, 853, 942 N.Y.S.2d 161 ; see Simonds v. Simonds , 45 N.Y.2d 233, 241, 408 N.Y.S.2d 359, 380 N.E.2d 189 ). "Thus, a constructive trust may be imposed wherever the required elements are ‘substantially present’ " ( Seidenfeld v. Zaltz , 162 A.D.3d 929, 935, 80 N.Y.S.3d 311, quoting Marini v. Lombardo , 39 A.D.3d 824, 825, 835 N.Y.S.2d 332 ).

Here, the allegations of the complaint failed to set forth the requisite confidential or fiduciary relationship, or that any transfer of the subject property was made in reliance upon an express or implied promise. Accordingly, we agree with the Supreme Court's determination granting dismissal of the constructive trust cause of action, as the elements of a constructive trust are not substantially present in the allegations of the complaint (see Seidenfeld v. Zaltz , 162 A.D.3d at 935, 80 N.Y.S.3d 311 ; Ewart v. Ewart , 78 A.D.3d 992, 993, 912 N.Y.S.2d 265 ; Prado v. De Latorre , 194 A.D.2d 656, 657, 599 N.Y.S.2d 124 ).

Moreover, whether the statute of limitations applicable to the cause of action for a judgment...