Morales v. Rolon

210 N.Y.S.3d 417

226 A.D.3d 765

Heriberto MORALES, respondent,

v.Juan ROLON, defendant,Ada Rolon, appellant.

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

Argued—October 24, 2023

April 10, 2024

Akerman LLP, New York, NY (Joshua D. Bernstein and Benjamin R. Joelson of counsel), for appellant.

Ortiz & Ortiz, LLP, Astoria, NY (Andrew T. Coyle and Norma Ortiz of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, CARL J. LANDICINO, JJ.

DECISION & ORDER

In a consolidated action, inter alia, to impose a constructive trust on real property, the defendant Ada Rolon appeals from an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated July 8, 2021. The order, insofar as appealed from, denied that defendant’s motion for summary judgment dismissing the complaint asserted against her and to cancel a notice of pendency.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Ada Rolon which was for summary judgment dismissing the cause of action to quiet title asserted against her, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Ada Rolon.

In the early 1980s, the plaintiff allegedly entered into an oral agreement with the defendants, Ada Rolon and Juan Rolon, and a third party to purchase real property in Brooklyn. Pursuant to that alleged agreement, the plaintiff contributed money towards the purchase price and subsequent carrying costs of the property. According to the plaintiff, the parties agreed that he would not be listed on the deed as an owner initially, but the property would be deeded to the plaintiff upon his de- mand. Accordingly, both the deed executed upon the sale in 1981, vesting title in Ada and the third party, and a 1983 deed vesting title in Juan, omit any reference to the plaintiff. Thereafter, in 1987 or 1988, Juan allegedly refused to transfer title to the plaintiff upon his demand.

In October 2013, the plaintiff commenced an action against Juan. In January 2018, the plaintiff commenced a separate action against Ada, asserting, inter alia, causes of action to impose a constructive trust on the property and to quiet title. In an order dated February 20, 2019, the Supreme Court consolidated the actions. The next day, Juan transferred the property to Ada by bargain and sale deed.

Ada moved for summary judgment dismissing the complaint asserted against her and to cancel a notice of pendency. In an order dated July 8, 2021, the Supreme Court denied the motion. Ada appeals.

[1–4] The Supreme Court properly denied that branch of Ada’s motion which was for summary judgment dismissing the constructive trust cause of action asserted against her. In general, "[t]o 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" (Keane v. Keane, 193 A.D.3d 838, 839, 148 N.Y.S.3d 145; see Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721). "These factors serve only as a guideline, and a constructive trust may still be imposed even if all four elements are not established" (Harounian v. Harounian, 198 A.D.3d 734, 737, 156 N.Y.S.3d 221). " ‘The ultimate purpose of a constructive trust is to prevent unjust enrichment and, thus, 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’ " (id. at 737–738, 156 N.Y.S.3d 221, quoting Cruz v. McAneney, 31 A.D.3d 54, 58–59, 816 N.Y.S.2d 486 [internal quotation marks omitted]). "A cause of action to impose a constructive trust is governed by a six-year statute of limitations, which begins to run at the time of the wrongful act giving rise to a duty of restitution" (Abakporo v. Abakporo, 202 A.D.3d 646, 650, 163 N.Y.S.3d 137 [citation omitted]; see CPLR 213[1]). " ‘A determination of when the wrongful act triggering the running of the Statute of Limitations occurs depends upon whether the constructive trustee acquired the property wrongfully, in which case the property would be held adversely from the date of acquisition, or whether the constructive trustee wrongfully withholds property acquired lawfully from the beneficiary, in which case the property would be held adversely from the date the trustee breaches or repudiates the agreement to transfer the property' " (Abakporo v. Abakporo, 202 A.D.3d at 650, 163 N.Y.S.3d 137, quoting Maric Piping, Inc. v. Marie, 271 A.D.2d 507, 508, 705 N.Y.S.2d 684 [citations omitted]).

[5, 6] Here, Ada established, prima facie, that the cause of...