Opinion
No. 2023-724 K C
05-17-2024
Rashid Bhuiyan, Appellant, v. Salina Bhuiyan, Respondent.
Law Office of Robert Bondar (Robert Bondar of counsel), for appellant. DC 37 Municipal Employees Legal Services (Nora Ule Rose of counsel), for respondent.
Unpublished Opinion
Law Office of Robert Bondar (Robert Bondar of counsel), for appellant.
DC 37 Municipal Employees Legal Services (Nora Ule Rose of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Sergio Jimenez, J.), dated June 13, 2023. The order denied petitioner's motion for summary judgment in a holdover summary proceeding.
ORDERED that the order is affirmed, without costs.
The petition in this holdover proceeding alleges that petitioner is the owner of the two-family building in which the subject apartment is located ("the building") and that occupant's tenancy was properly terminated. Occupant defends on the grounds that she is a co-owner of the building, as the parties had an oral agreement to purchase the building together, and that there is no landlord-tenant relationship between the parties. Petitioner appeals from an order of the Civil Court (Sergio Jimenez, J.), entered June 13, 2023, which denied petitioner's motion for summary judgment.
Contrary to petitioner's argument on appeal, given the liberal construction of pleadings and the allegations in occupant's answer, she sufficiently pleaded the existence of a constructive trust (see Buran v Coupal, 87 N.Y.2d 173 [1995]). A claim of a constructive trust can be asserted as an affirmative equitable defense to a summary proceeding (see Fizzinoglia v Capozzoli, 58 Misc.3d 149[A], 2018 NY Slip Op 50081[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Freire v Fajardo, 28 Misc.3d 137 [A], 2010 NY Slip Op 51453[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; Paladino v Sotille, 15 Misc.3d 60 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]).
In order to "obtain the remedy of a constructive trust, a plaintiff generally is required to demonstrate four factors: (1) a fiduciary or confidential relationship between the parties, (2) a promise, (3) a transfer of some asset in reliance upon the promise, and (4) unjust enrichment flowing from the breach of the promise" (Hernandez v Florian, 173 A.D.3d 1144, 1145 [2019] [internal quotation marks omitted]; see Delidimitropoulos v Karantinidis, 186 A.D.3d 1489, 1490 [2020]). In opposition to petitioner's motion for summary judgment, occupant demonstrated that there is a confidential relationship between the parties, who are siblings (see Peebles v Peebles, 40 A.D.3d 1388, 1390 [2007] ["the familial relationship between the parties is sufficient to demonstrate a confidential relationship"]); claimed that petitioner, her brother, was in charge of the finances for the family and that there was an understanding that they would both own properties acquired by family members, including the subject building; alleged that she transferred $35,000 to her brother as part of the down payment to buy the building in reliance upon that understanding; and alleged that petitioner is unjustly enriched because he claims to solely own the building, which occupant helped purchase and which she was to co-own with him. Therefore, while petitioner supported his claim of sole ownership of the building with a deed in his name, occupant raised a triable issue of fact as to the existence of a constructive trust (see Hernandez v Florian, 173 A.D.3d 1144; Sharp v Kosmalski, 40 N.Y.2d 119 [1976]). Thus, petitioner's motion for summary judgment was properly denied.
Accordingly, the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.