PYROS v. DENGEL (2006)

In an action to impose a constructive trust on real property, and a related action for specific performance of a contract for the sale of real property, Clorinda Pyros and Elizabeth Pyros appeal from a judgment of the Supreme Court, Suffolk County (Werner, J.), dated July 7, 2005, which, after a nonjury trial, inter alia, granted Charles Capobianco and Jennifer Capobianco specific performance of the contract of sale, imposed a constructive trust on the proceeds of the sale, and directed Charles Dengel to pay only 1/3 of the proceeds of the sale to Clorinda Pyros.

ORDERED that the judgment is affirmed, with one bill of costs.

 The trial court properly directed specific performance of the contract of sale between Charles Dengel, the seller of the subject property, and Charles Capobianco and Jennifer Capobianco, the purchasers (see Tucek v. Hoffman, 161 A.D.2d 588, 555 N.Y.S.2d 167).   The trial court also properly imposed a constructive trust on the proceeds of the sale of the subject property (see Nastasi v. Nastasi, 26 A.D.3d 32, 38, 805 N.Y.S.2d 585;  cf. Spodek v. Riskin, 150 A.D.2d 358, 540 N.Y.S.2d 879;  Levy v. Moran, 270 A.D.2d 314, 704 N.Y.S.2d 609).   The evidence at trial showed the existence of a confidential or fiduciary relationship between Clorinda Pyros and Dengel, a transfer of an interest in the subject property to Dengel in reliance on a promise to reconvey the property, and unjust enrichment (see Sharp v. Kosmalski, 40 N.Y.2d 119, 386 N.Y.S.2d 72, 351 N.E.2d 721;  Lipton v. Donnenfeld, 5 A.D.3d 356, 773 N.Y.S.2d 82;  cf. Modica v. Modica, 15 A.D.3d 635, 791 N.Y.S.2d 134).   The trial court's determination that Clorinda Pyros consented to the sale of the property should be accorded deference, since the court was in a position to assess the evidence and credibility of witnesses at trial (see Faisal v. Mayronne, 22 A.D.3d 634, 801 N.Y.S.2d 920;   Koslowski v. Koslowski, 297 A.D.2d 784, 747 N.Y.S.2d 583).   Furthermore, there is legally sufficient evidence to support the finding that Clorinda Pyros is entitled to only 1/3 of the sale proceeds (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).   Moreover, in reviewing a determination made after a nonjury trial, “the power of the Appellate Division ․ is as broad as that of the trial court and ․ it may render the judgment it finds warranted by the facts, taking into account that in a close case ․ ‘the trial judge had the advantage of seeing the witnesses' ” (Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [citations omitted], quoting York Mortgage Corp. v. Clotar Constr. Corp., 254 N.Y. 128, 133-134, 172 N.E. 265).   The trial court's determination is supported by the record, and we find no reason to disturb it (see Tornheim v. Kohn, 31 A.D.3d 748, 818 N.Y.S.2d 491;  Kahan v. Sulaymanov, 24 A.D.3d 612, 807 N.Y.S.2d 111;  Bucci v. Bucci, 231 A.D.2d 665, 647 N.Y.S.2d 978).

The parties' remaining contentions are without merit.