Opinion
2013-05-1
Cynthia Altoriso BRODERSON, et al., appellants, v. Gary PARSONS, et al., respondents.
Seligman & Seligman, Kingston, N.Y. (Delice Seligman of counsel), for appellants. Mordente Law Firm LLC, Fresh Meadows, N.Y. (Anthony R. Mordente of counsel), for respondents.
Seligman & Seligman, Kingston, N.Y. (Delice Seligman of counsel), for appellants. Mordente Law Firm LLC, Fresh Meadows, N.Y. (Anthony R. Mordente of counsel), for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.
In an action, inter alia, to impose a constructive trust upon certain real property, the plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Archer, Ct. Atty. Ref.), dated August 19, 2011, which denied their motion, inter alia, pursuant to CPLR 4404 (b) to set aside a decision of the same court dated April 18, 2011, made after a nonjury trial, and for judgment as a matter of law in their favor on the fourth cause of action, which sought to impose a constructive trust on certain real property, or, alternatively, for a new trial on that cause of action, (2) from an order of the same court, also dated August 19, 2011, which directed the dismissal of the fourth cause of action, and (3), as limited by their brief, from so much of a judgment of the same court dated September 19, 2011, as, upon the decision and the orders, is in favor of the defendants and against them dismissing the fourth cause of action.
ORDERED that the appeals from the orders are 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 appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of 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 appeals from the orders are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a][1] ).
The plaintiff Cynthia Altoriso Broderson is a cousin of the defendants Lisa Parsons and Gary Parsons. In 1989, Broderson signed a deed (hereinafter the 1989 deed) conveying her 25% interest in certain residential real property (hereinafter the subject property), which she had inherited from her father, to the defendant Lisa Parsons (hereinafter Lisa). According to Broderson, this transfer was made to Lisa with the understanding that if the subject property were ever sold, Broderson would still share in the proceeds. Anne Parsons, who was Lisa's mother and Broderson's aunt, also signed the 1989 deed, thus conveying her own interest in the subject property to Lisa as well. Upon acquisition of the 1989 deed, Lisa, who resided in a house located on the subject property, became the sole title owner of the subject property. In 1992, Lisa conveyed the subject property to her brother and his wife, the defendants Gary Parsons and Joan Parsons, although Lisa continued to live there. In or around 2005, Lisa moved out of the house, and, subsequently, Broderson commenced this action, inter alia, to impose a constructive trust on the subject property. Following a nonjury trial before a referee, judgment was rendered in favor of the defendants.
“The elements of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment” ( Williams v. Eason, 49 A.D.3d 866, 868, 854 N.Y.S.2d 477;see Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721;O'Brien v. Dalessandro, 43 A.D.3d 1123, 1124, 843 N.Y.S.2d 348). These requirements, however, are not to be rigidly applied ( see Matter of Wieczorek, 186 A.D.2d 204, 205, 587 N.Y.S.2d 755). The ultimate purpose of a constructive trust is to prevent unjust enrichment, and it will 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’ ” ( Sharp v. Kosmalski, 40 N.Y.2d at 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;see Rowe v. Kingston, 94 A.D.3d 852, 853, 942 N.Y.S.2d 161;Poupis v. Brown, 90 A.D.3d 881, 882, 935 N.Y.S.2d 127).
A referee appointed to hear and determine an issue has all the powers of the court in performing a like function, including entertaining posttrial motions pursuant to CPLR article 44 ( seeCPLR 4301, 4318; Muir v. Cuneo, 267 A.D.2d 439, 440, 700 N.Y.S.2d 495). “On an appeal from a judgment after a nonjury trial, this Court's power to review the evidence is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, giving due regard to the trial court, which had the advantage of assessing the credibility of the witnesses” ( Rock v. Rock, 100 A.D.3d 614, 615–616, 953 N.Y.S.2d 165;see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809).
Here, the Supreme Court properly concluded that Broderson failed to satisfy her burden of proof with respect to the elements necessary to impose a constructive trust. Although the parties shared a confidential relationship ( see e.g. Reiner v. Reiner, 100 A.D.2d 872, 874, 474 N.Y.S.2d 538), the court's determination that Broderson failed to establish that there was a transfer in reliance on a promise or that the defendants were unjustly enriched was warranted by the evidence. The uncontroverted testimony at trial established that Gary Parsons had paid the taxes and associated maintenance costs on the subject property beginning in1992, at the latest, even though he did not reside there himself ( cf. Rowe v. Kingston, 94 A.D.3d 852, 942 N.Y.S.2d 161). Meanwhile, Broderson admitted that she had not contributed either financially or in sweat equity to the subject property since 1980, at the latest; in fact, Broderson admitted that she conveyed the subject property to Lisa in large part to absolve herself of any financial responsibility for it. Furthermore, Broderson did not submit any evidence, such as documentation of the property taxes, rental income, and the proposed sale value of the subject property, to demonstrate that the defendants would be unjustly enriched by retaining legal title. Accordingly, the Supreme Court properly determined that a constructive trust should not be imposed ( see Losner v. Cashline, L.P., 41 A.D.3d 789, 790, 838 N.Y.S.2d 665;Koslowski v. Koslowski, 297 A.D.2d 784, 785, 747 N.Y.S.2d 583;Potter v. Davie, 275 A.D.2d 961, 964, 713 N.Y.S.2d 627;see generally McGrath v. Hilding, 41 N.Y.2d 625, 629, 394 N.Y.S.2d 603, 363 N.E.2d 328).
In light of our determination, the defendants' remaining contention has been rendered academic. Broderson's remaining contentions are without merit.
Motion by the respondents, on appeals from a judgment of the Supreme Court, Kings County, dated September 19, 2011, and two orders of the same court, both dated August 19, 2011, inter alia, to dismiss the appeal docketed under Appellate Division Docket No. 2011–09873, from the order which directed the dismissal of the fourth cause of action, on the ground that the right of direct appeal from that order terminated upon entry of the judgment. By decision and order on motion of this Court dated August 27, 2012, that branch of the motion which was to dismiss the appeal from the order docketed under Appellate Division Docket No. 2011–09873 was referred to the panel of Justices hearing the appeals for determination upon the argument or submission of the appeals.
Upon the papers submitted in support of the motion and the papers submitted in opposition thereto, and upon the argument of the appeals, it is
ORDERED that the branch of the motion which was to dismiss the appeal docketed under Appellate Division Docket No. 2011–09873 is denied as academic in light of our determination of the appeal from that order ( see Broderson v. Parsons, ––– A.D.3d ––––, ––– N.Y.S.2d –––– [decided herewith] ).