SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
December 9, 2008
JOYCE BLIDGEN, ET AL., RESPONDENTS,
ESTATE OF EVERTON A. KING, ET AL., APPELLANTS.
Appeal by the defendants from an order of the Supreme Court, Kings County (Schack, J.) dated June 29, 2007, which granted the plaintiffs' motion to, among other things, "[impose] a constructive trust on the property located at 639 East 28th Street, Brooklyn."
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO and WILLIAM E. McCARTHY, JJ.
(Index No. 12548/07)
DECISION & ORDER
ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion is denied.
The plaintiffs, in effect, sought summary judgment (see CPLR 3212) in connection with a claim based on a theory of constructive trust that had apparently never been pleaded in any complaint. The record contains no indication that any civil action or proceeding had ever been commenced (see CPLR 103[b]; 304). Accordingly, there being no pending action or proceeding, the defendants' motion should have been denied.
RIVERA, J.P., DILLON, COVELLO and McCARTHY, JJ., concur.
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