The purported fiduciary duty arises from Assar's alleged acceptance of funds from Borumand with the assurance that he would invest those funds on her behalf in Helix stock. My finding that Borumand has not proved that Assar provided such an assurance defeats this claim, even were I to conclude that such assurance, coupled with the relationship by marriage between the parties, would be sufficient to establish a fiduciary relationship. See, e.g., Crown Realty Co. v. Crown Heights Jewish Cmty. Council, 572 N.Y.S.2d 38, 39 (N.Y.App. Div. 1991) (existence of fiduciary or confidential relationship is a factual question); Mendel v. Hewitt, 555 N.Y.S.2d 899, 900 (N.Y.App.Div. 1990) (same). In addition, because the fraud statute of limitations applies to this cause of action as well, I find that it is barred for the reasons discussed above.
In determining whether to grant the equitable remedy of a constructive trust, New York courts often consider four factors: (1) a confidential or fiduciary relationship; (2) a promise, express or implied; (3) a transfer in reliance thereon; and (4) unjust enrichment. See, e.g., Crown Realty Co. v. Crown Heights Jewish Community Council, 175 A.D.2d 151, 572 N.Y.S.2d 38, 38 (2d Dept. 1991) (citing Sharp v.Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721 (1976)). The Second Circuit has noted that although these factors are "'useful in many cases, constructive trust doctrine is not rigidly limited'" by their application.
The existence of a confidential relationship is a question of fact. Crown Realty Co. v. Crown Heights Jewish Community Council, 572 N.Y.S.2d 38, 39, 175 A.D.2d 151, 151 (2nd Dep't 1991) (citing Mendel v. Hewitt, 555 N.Y.S.2d 899, 900, 161 A.D.2d 849, 850 (3rd Dep't 1990)); see also Williams v. Lynch, 666 N.Y.S.2d 749, 751-52, ___ A.D.2d ___, (3rd Dep't 1997). Ordinarily, a conventional, arms-length commercial relationship does not give rise, in and of itself, to a confidential or fiduciary relationship.
Moreover, the allegations supporting plaintiff's constructive trust claim are not barred by the statute of frauds, as it does not bar a cause of action to impose a constructive trust. On the contrary, "by its very nature, a constructive trust does not require a writing" ( Crown Realty Co. v. Crown Hgts. Jewish Community Council, 175 A.D.2d 151, 151–152, 572 N.Y.S.2d 38 [2d Dept. 1991] ). Furthermore, there is no question that plaintiff will suffer irreparable harm if he is evicted from his home of more than 40 years, and we reject defendants' contention that any harm is speculative because plaintiff has moved to vacate his default in the holdover proceeding (see e.g.Jones v. Park Front Apts., LLC, 73 A.D.3d 612, 613, 901 N.Y.S.2d 46 [1st Dept. 2010] ).
In light of this fact, the defendants were properly precluded at the subsequent inquest on damages from introducing any evidence tending to defeat the plaintiffs cause of action ( see Wilson v Galicia Contr. Restoration Corp., 10 NY3d 827, 830; Rokina Opt. Co. v Camera King, 63 NY2d 728, 730). Moreover, applying the elements of a constructive trust in a flexible manner ( see Crown Realty Co. v Crown Hgts. Jewish Community Council, 175 AD2d 151) to the facts, the Supreme Court properly held that a constructive trust was established in the plaintiffs favor ( see Sharp v Kosmalski, 40 NY2d 119, 121; Ruiz v Meloney, 26 AD3d 485, 486-487; Eickler v Pecora, 12 AD3d 635, 636). The defendants' remaining contentions are without merit.
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 ( see McGrath v Hilding, 41 NY2d 625, 629; Sharp v Kosmalski, 40 NY2d 119, 121; Squiciarino v Squiciarino, 35 AD3d 844, 845). To achieve equity and avoid unjust enrichment, the courts apply these factors flexibly rather than rigidly ( see Simonds v Simonds, 45 NY2d 233, 241; Moak v Raynor, 28 AD3d 900, 902; Byrd v Brown, 208 AD2d 582, 583; Crown Realty Co. v Crown Hgts. Jewish Community Council, 175 AD2d 151.]).
If an affidavit is submitted for that purpose, it should be given its most favorable intendment ( Cron v Hargro Fabrics, 91 NY2d at 366). A complaint seeking imposition of a constructive trust must allege "four elements . . . (1) a confidential or fiduciary relationship, (2) a promise, express or implied, (3) a transfer in reliance thereon, and (4) unjust enrichment" ( Panetta v Kelly, 17 AD3d 163, 165, lv dismissed 5 NY3d 783; Crown Realty Co. v Crown Hgts. Jewish Community Council, 175 AD2d 151). Here, as the majority concedes, the complaint and plaintiffs' papers in opposition to the motion to dismiss are bereft of any assertions as to the existence of either a confidential or a fiduciary relationship.
The usual elements of a constructive trust are "(1) a confidential or fiduciary relation [ship], (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment" ( Sharp v Kosmalski, supra at 121; see Levy v Moran, 270 AD2d 314). However, these factors should be applied flexibly ( see Crown Realty Co. v Crown Hgts. Jewish Community Council, 175 AD2d 151; Lester v Zimmer, 147 AD2d 340; Hornett v Leather, 145 AD2d 814, 815). Thus, courts can and will impose constructive trusts "whenever necessary to satisfy the demands of justice" ( Simonds v Simonds, 45 NY2d 233, 241; see Levy v Moran, supra).
Plaintiff's third cause of action seeks to impose a constructive trust on the stock and proprietary lease. Although the statute of frauds does not bar a court from imposing a constructive trust ( see Forbes v. Clarke, 194 AD2d 393; Spodek v. Riskin, 150 AD2d 358), four elements must be established before a court may grant this remedy: (1) a confidential or fiduciary relationship, (2) a promise, express or implied, (3) a transfer in reliance thereon, and (4) unjust enrichment ( Crown Realty Co. v. Crown Hgts. Jewish Community Council, 175 AD2d 151). Taking plaintiff's allegations as true and affording him the benefit of all favorable inferences ( see Rovello v. Orofino Realty Co., 40 NY2d 633), many issues abound over whether the parties "enjoyed a confidential relationship sufficient to sustain the imposition of a constructive trust" ( Forbes v. Clarke, 194 AD2d 393, supra).
To the extent that the first cause of action seeks to impose a constructive trust, the complaint fails to state a cause of action since it does not allege that there was a fiduciary duty running from the appellants to the plaintiff, and that the plaintiff transferred property in reliance on promises made by the appellants arising out of that fiduciary duty ( see Ellner v. Pope, 285 AD2d 624, 625; Levy v. Moran, 270 AD2d 314, 315; cf. Fedziuk v. Conroy, 199 AD2d 300; Crown Realty Co. v. Crown Hgts. Jewish Community Council, 175 AD2d 151). Similarly, to the extent that the first cause of action seeks to recover damages based on negligence, it should have been dismissed because it fails to allege facts which, if proven, would establish that the appellants breached a duty of care independent of any purported contractual obligation ( see Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382, 389; Muldoon v. Blue Water Pool Servs., 7 AD3d 496, 497).