Thus, a constructive trust “will be erected whenever necessary to satisfy the demands of justice” (Latham v. Father Divine, 299 N.Y. 22, 27, 85 N.E.2d 168). Here, the marital relationship between James and the decedent provides the necessary confidential relationship ( see Brazil v. Brazil, 235 A.D.2d 611, 614, 651 N.Y.S.2d 721; Jacobs v. Abramoff, 148 A.D.2d 497, 498, 538 N.Y.S.2d 841). The petitioners have sufficiently alleged a promise by the decedent, a change in beneficiary of the Oppenheimer Funds IRA to the decedent in reliance upon that promise, and the decedent's, and then Holbrook's, unjust enrichment therefrom. Contrary to Holbrook's contention, the petitioners possessed a sufficient interest as the previously designated beneficiaries of the Oppenheimer Funds IRA to seek to impose a constructive trust on the proceeds ( see Oakes v. Muka, 69 A.D.3d 1139, 893 N.Y.S.2d 677).
In his second cause of action, the plaintiff sought to impose a constructive trust in his favor upon, among others, the subject "hotel properties" legally owned by, and titled in, the defendant's name. The cause of action for a constructive trust "seeks a judgment affecting title to, or the possession, use or enjoyment of real property within the purview of CPLR 6501" ( Peterson v Kelly, 173 AD2d 688, 689 [citations omitted]) and thus was sufficient to support the filing of a notice of pendency ( see Klein v Gutman, 12 AD3d 348, 352; Peterson v Kelly, 173 AD2d at 689; Jacobs v Abramoff, 148 AD2d 497, 499; Siegel v Silverstone, 250 App Div 784; cf. 5303 Realty Corp. v O Y Equity Corp., 64 NY2d 313, 318; Yonaty v Glauber, 40 AD3d 1193).
In addition, the elements of the second and third causes of action, to impose a constructive trust and for an accounting, respectively, either are adequately alleged or may fairly be inferred from the complaint ( see Sharp v. Kosmalski, 40 NY2d 119; Marcus v. Marcus, supra). As the complaint, in part, seeks to impose a constructive trust on the 50th Street property, it was a proper basis upon which to impose a notice of pendency ( see Jacobs v. Abramoff, 148 AD2d 497). Accordingly, we reverse the order dated December 18, 2002, and reinstate the notice of pendency.
The Supreme Court properly imposed a constructive trust on the two tickets at issue and directed Donnenfeld to transfer the license to purchase those tickets to Brand. The elements of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance upon the promise, and unjust enrichment ( see Sharp v. Kosmalski, 40 N.Y.2d 119). The factors are not rigidly applied but are flexible, and a constructive trust will be imposed to satisfy the demands of justice ( see Simonds v. Simonds, 45 N.Y.2d 233; Latham v. Father Divine, 299 N.Y. 22, 27; Matter of Wieczorek, 186 A.D.2d 204). It is "the formula through which the conscience of equity finds expression" ( Beaty v. Guggenheim Exploration Co., 225 N.Y. 380, 386; see Latham v. Father Divine, supra, at 27), and is available to prevent unjust enrichment in a wide range of circumstances ( see Latham v. Father Divine, supra, at 27; see Jacobs v. Abramoff, 148 A.D.2d 497, 499; Palazzo v. Palazzo, 121 A.D.2d 261). Lipton originally purchased the tickets on behalf of his friends, and acted as custodian for more than 30 years, distributing the tickets and collecting payment at the beginning of each season. It was understood that each man was the "owner" of his two tickets, and Lipton retained only nominal title to the license to purchase all eight tickets.
marital property to reduction of indebtedness secured by a lien thereon constitutes an "appreciation [of separate property] * * * due in part to the contributions or efforts of the other spouse" within the purview of Domestic Relations Law § 236 (B) (1) (d) (3), that does not leave her without a remedy. In the recent case of Carney v Carney ( 202 A.D.2d 907), this Court was faced with a similar situation, came to the conclusion that marital funds should not be used to pay off separate liabilities and remedied the inequity by crediting the injured spouse with a sum equal to one half of the marital property thus applied (see, supra, at 908; compare, Markel v. Markel, 197 A.D.2d 934, 935; Lolli-Ghetti v Lolli-Ghetti, 165 A.D.2d 426, lv denied 78 N.Y.2d 864). Authority for that resolution can be found in the traditional notion that equity will intervene to remedy one spouse's breach of fiduciary responsibility or unjust enrichment by virtue of his or her expenditure of marital funds (see, Jacobs v. Abramoff, 148 A.D.2d 497; 11C Zett-Kaufman-Kraut, N.Y. Civ Prac § 61.01 [8] [b]; see also, Domestic Relations Law § 236 [B] [5] [d] [11] [permitting a court to consider a spouse's wasteful dissipation of marital assets in its distribution of marital property]). As such, we conclude that in effecting an equitable distribution of marital property, a court has the authority to effectively recoup marital funds applied to the reduction of one party's separate indebtedness and to distribute such funds to the parties in accordance with Domestic Relations Law § 236 (B) (5) (c).
The elements to be established for imposition of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance upon the promise, and unjust enrichment (see, Sharp v Kosmalski, 40 N.Y.2d 119). A constructive trust will be imposed to satisfy the demands of justice (see, Simonds v. Simonds, 45 N.Y.2d 233; Latham v. Father Divine, 299 N.Y. 22, 27). It is "`the formula through which the conscience of equity finds expression'" (Latham v. Father Divine, 299 N.Y. 22, 27, supra, quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386), and is available to prevent unjust enrichment in a wide range of circumstances (see, Jacobs v. Abramoff, 148 A.D.2d 497; Palazzo v Palazzo, 121 A.D.2d 261). At bar, the testimony of the plaintiff was that she conveyed her home to her niece, one of her only two living relatives, after the niece made specific promises to her.
We find that the Supreme Court improperly vacated the plaintiff's notice of pendency upon the ground that this action does not seek a judgment which would give the plaintiff an interest in the subject realty. An action for the imposition of a constructive trust seeks a judgment affecting title to, or the possession, use or enjoyment of real property within the purview of CPLR 6501 (see, 5303 Realty Corp. v O Y Equity Corp., 64 N.Y.2d 313, 320; Jacobs v Abramoff, 148 A.D.2d 497; Keen v Keen, 140 A.D.2d 311; Laucella v Grant, 126 A.D.2d 705; Notar Servs. Corp. v Dalmazio, 110 A.D.2d 892). Accordingly, the filing of a notice of pendency in such an action is proper (see, Jacobs v Abramoff, supra; Keen v Keen, supra; Laucella v Grant, supra).
Accordingly, CPLR § 6515(2) is the preferred approach here as plaintiff seeks specific performance to void the allegedly fraudulent mortgage transactions at issue. However, while defendant might be entitled to relief under CPLR § 6515(2), it is unclear from the record before the court what the bond amounts would need to be in this matter to sufficiently protect the interests of both parties (see Jacobs v Abramoff, 148 AD2d 497, 499 [2d Dept 1989] ["As the court did not have sufficient evidence before it for the purposes of determining what would constitute an adequate undertaking, it did not improvidently exercise its discretion in denying the relief sought."]. Additional information is required for this court to utilize the preferred CPLR § 6515(2) bonding process.
The doctrine of constructive trust gives expression to the conscience of equity, and it is used to prevent unjust enrichment in a wide range of circumstances. (See Lipton v. Donnenfeld, supra; Jacobs v. Abramoff, 148 AD2d 497.) "[T]he gravamen of an action to impose a constructive trust is the transfer of property in reliance upon a promise to convey, reconvey or hold the property for the benefit of another ***."
The doctrine of constructive trust gives expression to the conscience of equity, and it is used to prevent unjust enrichment in a wide range of circumstances. (see Lipton v Donnenfeld, 5 AD3d at 358; Jacobs v Abramoff, 148 AD2d 497, 498.) "[T]he gravamen of an action to impose a constructive trust is the transfer of property in reliance upon a promise to convey, reconvey or hold the property for the benefit of another . . ."