PASCOE v. PASCOE (2003)

We affirm for reasons stated in the decision at Supreme Court (Boniello, III, J.).   In addition, we note that the court properly determined that the marital residence was the separate property of defendant and that the interest of plaintiff in the property is limited to her equitable share of any marital funds used to pay the mortgage on the property (see Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769).   Here, however, the mortgage was paid from rental income generated by the property (see Pelletier v. Pelletier, 242 A.D.2d 325, 326, 662 N.Y.S.2d 64, lv. denied 91 N.Y.2d 803, 668 N.Y.S.2d 558, 691 N.E.2d 630), and thus plaintiff failed to prove that she is entitled to any distribution of the equity in the marital residence, regardless of the amount of that equity.   Plaintiff failed to preserve for our review her further contention that she is entitled to the imposition of a constructive trust on defendant's property and, in any event, that contention lacks merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: