D'Addario & Frumin, Brooklyn, NY (Andrei A. Popescu,
PLLC, of counsel), for appellant.
Anthony M. Bramante, Brooklyn, NY, for respondent.
PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE,
HECTOR D. LASALLE, JJ.
DECISION & ORDER
action for the partition and sale of real property, the
defendant appeals, as limited by her brief, from so much of a
judgment of the Supreme Court, Kings County (Bunyan, J.),
dated March 15, 2016, as, upon an order of that court
(Sunshine, Ct. Atty. Ref.) dated November 19, 2014, made
after a hearing, dismissed her counterclaim for the
imposition of a constructive trust.
that the judgment is affirmed insofar as appealed from, with
2008, the defendant, with the assistance of counsel, made
plans to transfer ownership of two residential properties in
Brooklyn to her two children. As pertinent to this appeal, in
December 2008, the defendant conveyed a 99% interest in the
subject property to her daughter, the plaintiff, while
retaining a 1% interest for herself. After the parties'
relationship deteriorated, the plaintiff commenced this
action for the partition and sale of the subject property.
The defendant asserted a counterclaim, inter alia, for the
imposition of a constructive trust. A court attorney referee
was appointed to hear and determine the issue of whether to
impose a constructive trust on the subject property.
hearing, the Referee, based upon the conflicting testimony of
the parties and testimony from a nonparty attorney,
determined, among other things, that the defendant's
testimony was not credible and that she failed to establish,
by clear and convincing evidence, that the subject transfer
was made in reliance on any express or implied promise by the
plaintiff or that the transfer resulted in unjust enrichment.
Based upon the Referee's determination, the Supreme Court
entered a judgment, inter alia, dismissing the
defendant's counterclaim for the imposition of a
constructive trust. The defendant appeals, arguing that the
court should have imposed a constructive trust in her favor.
constructive trust is an equitable remedy and its purpose is
to prevent unjust enrichment" (Marini v
Lombardo, 79 A.D.3d 932, 933 [citation omitted]; see
Tyree v Henn, 109 A.D.3d 906, 907; Henning v
Henning, 103 A.D.3d 778, 779-780). To obtain the remedy
of a constructive trust, a party is generally required to
establish four factors, or elements, by clear and convincing
evidence: (1) a confidential or fiduciary relationship, (2) a
promise, (3) a transfer in reliance thereon, and (4) unjust
enrichment flowing from the breach of the promise (see
Sharp v Kosmalski, 40 N.Y.2d 119, 121; Kaprov v
Stalinsky, 145 A.D.3d 869, 870; Diaz v Diaz,
130 A.D.3d 560, 561; Tyree v Henn, 109 A.D.3d at
907; Ewart v Ewart, 78 A.D.3d 992, 993).
"[T]hese factors, or elements, serve only as a
guideline, and a constructive trust may still be imposed even
if all four elements are not established" (Tyree v
Henn, 109 A.D.3d at 907-908, citing, inter alia,
Simonds v Simonds, 45 N.Y.2d 233, 241; see
Henning v Henning, 103 A.D.3d at 780), because "the
constructive trust doctrine is given broad scope to respond
to all human implications of a transaction in order to give
expression to the conscience of equity and to satisfy the
demands of justice" (Ning Xiang Liu v Al Ming
Chen, 133 A.D.3d 644, 645; see Kaprov v
Stalinsky, 145 A.D.3d at 870).
The credibility determinations of a referee are entitled to
deference on appeal, since the referee had the opportunity to
see and hear the witnesses'" (S. Nicolia &
Sons Realty Corp. v A.J.A. Concrete Ready Mix, Inc., 137
A.D.3d 994, 995, quoting Tihomirovs v Tihomirovs,
123 A.D.3d 808, 809). Here, there is no reason to disturb the
Referee's determination, after the hearing, that the
defendant's testimony was incredible and that she failed
to establish by clear and convincing evidence that the
plaintiff made any express or implied promise to induce her
to make the subject property transfer (see generally
O'Brien v Dalessandro, 43 A.D.3d 1123, 1124).
Further, the Referee properly concluded that there was no
unjust enrichment resulting from the transfer. Among other
things, the evidence adduced at the hearing demonstrated that
the defendant's intention at the time of the transfer was
to provide each of her children with a residential property
in Brooklyn as a gift, and that the defendant had sufficient
means to make such a transfer and ...