MOLLIN v. LERNER (1999)

In an action, inter alia, for a judgment declaring that the plaintiff has a valid life estate in certain real property and the exclusive right to possess the subject premises until his death, or for the rescission of the deed, the defendant appeals from a judgment of the Supreme Court, Nassau County (Ain, J., at trial and on decision;  Carter, J., on judgment), dated February 11, 1998, which, after a nonjury trial, is in favor of the plaintiff and against her, directing her, among other things, to execute a deed in fee simple, granting title of the premises to the plaintiff upon his payment to her of the sum of $12,164.89 as reimbursement for taxes she paid on the property.   The notice of appeal from the decision dated October 14, 1997, is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c] ).

ORDERED that the judgment is reversed, on the law and as a matter of discretion, and the matter remitted to Supreme Court, Nassau County, for a new trial, with costs to abide the event.

 Contrary to the Supreme Court's determination, the 1972 deed transferring the subject premises from the plaintiff and his now-deceased wife to the defendant, their daughter, should not have been rescinded on the basis that there was a failure of consideration (see, Moczan v. Moczan, 135 A.D.2d 692, 522 N.Y.S.2d 591), a lack of meeting of the minds between the parties at the time the agreement was made, or because the defendant committed a material breach of her obligations under the agreement.   Therefore, the Supreme Court erred in directing the defendant to execute a deed in fee simple granting title of the premises to the plaintiff.

 However, under the circumstances of this case, a new trial is warranted on the issue of whether the defendant holds and possesses title to the premises as a constructive trustee for the benefit of the plaintiff, subject to the plaintiff's retention of a life estate giving him exclusive use and possession of the property (see, generally, Sharp v. Kosmalski, 40 N.Y.2d 119, 386 N.Y.S.2d 72, 351 N.E.2d 721;  Matter of Wieczorek, 186 A.D.2d 204, 587 N.Y.S.2d 755;  Djamoos v. Djamoos, 153 A.D.2d 871, 545 N.Y.S.2d 596;  Farano v. Stephanelli, 7 A.D.2d 420, 183 N.Y.S.2d 707).   In this case, which was tried without a jury, the court improvidently exercised its discretion in curtailing the testimony of the defendant and her brother with respect to establishing the plaintiff's alleged intent to convey the premises to her absolutely.   Since resolution of the issue of the existence of a constructive trust turned solely upon questions of credibility, and the evidence was far from overwhelming, it cannot be said that the curtailment of the testimony of the defendant and her brother was harmless (see, Smith v. Kuhn, 221 A.D.2d 620, 621, 634 N.Y.S.2d 167;  Cotter v. Mercedes-Benz, 108 A.D.2d 173, 179-180, 488 N.Y.S.2d 390).

MEMORANDUM BY THE COURT.