NEUHAUSER v. POLANCO (2005)

In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, the defendants Yitchok Wagschal and Lilly Neuhauser, a/k/a Lilly Weiss, a/k/a Chaya Neuhauser, appeal, as limited by their brief, from stated portions of a judgment of the Supreme Court, Orange County (Owen, J.), entered September 3, 2003, which, after a nonjury trial, determined that the defendant Lilly Neuhauser, a/k/a Lilly Weiss, a/k/a Chaya Neuhauser, held title to certain property in constructive trust for the benefit of the plaintiff, and that the defendant Yitchok Wagschal was not a bona fide purchaser of the property for value, and the defendant Antonio Polanco also appeals from the judgment.

ORDERED that the appeal by the defendant Antonio Polanco is dismissed as abandoned (see 22 NYCRR 670.8[e] );  and it is further,

ORDERED that the judgment is affirmed insofar as appealed from by the defendants Yitchok Wagschal and Lilly Neuhauser, a/k/a Lilly Weiss, a/k/a Chaya Neuhauser, without costs or disbursements.

 A court's determination after a nonjury trial will generally be upheld unless it could not have been reached under any fair interpretation of the evidence (see Koslowski v. Koslowski, 297 A.D.2d 784, 785, 747 N.Y.S.2d 583).   Here, the trial court found that the plaintiff established, inter alia, the existence of a confidential or fiduciary relationship (see Walsh v. Walsh, 91 A.D.2d 1198, 459 N.Y.S.2d 187;  Darlagiannis v. Darlagiannis, 48 A.D.2d 875, 369 N.Y.S.2d 475;  Janke v. Janke, 47 A.D.2d 445, 449, 366 N.Y.S.2d 910, affd. 39 N.Y.2d 786, 385 N.Y.S.2d 286, 350 N.E.2d 617), and a promise to transfer title to the subject property (see Ostriker v. Ostriker, 203 A.D.2d 343, 345, 609 N.Y.S.2d 922;  Tordai v. Tordai, 109 A.D.2d 996, 997, 486 N.Y.S.2d 802).   It determined that the plaintiff was entitled to the imposition of a constructive trust in his favor (see Sharp v. Kosmalski, 40 N.Y.2d 119, 386 N.Y.S.2d 72, 351 N.E.2d 721).   This determination was based on a fair interpretation of the evidence.

 The appellant Yitchok Wagschal failed to satisfy his burden of proving that he did not purchase the property with “previous notice of the alleged prior fraud by the seller” (Public Adm'r of Kings County v. Samerson, 298 A.D.2d 512, 513, 750 N.Y.S.2d 301).

The appellants' remaining contentions do not require reversal.