IN RE: Thomas ELMEZZI (2026)

DECISION & ORDER

In a probate proceeding in which the petitioners, the co-executors of the estate of Thomas Elmezzi, petitioned pursuant to SCPA 2103 to discover and recover property alleged to belong to the estate, the petitioners and Thomas & Jeanne Elmezzi Private Foundation separately appeal from a decree of the Surrogate's Court, Nassau County (Margaret C. Reilly, S.), dated August 3, 2020.  The decree, upon a decision of the same court dated May 15, 2020, made after a nonjury trial, in effect, denied the petition and dismissed the proceeding.

ORDERED that the appeal by Thomas & Jeanne Elmezzi Private Foundation is dismissed, as Thomas & Jeanne Elmezzi Private Foundation is not aggrieved by the decree (see CPLR 5511;  Mixon v. TBV, Inc., 76 AD3d 144, 156–157);  and it is further,

ORDERED that the decree is affirmed on the appeal by the petitioners;  and it is further,

ORDERED that one bill of costs is awarded to Enrique C. Molina.

Thomas Elmezzi (hereinafter the decedent) died on October 3, 2005.  In this probate proceeding, the petitoners, Stephen J. Saft, Lynn Grossman, and Alfred LaRosa, the co-executors of the estate of the decedent, petitioned pursuant to SCPA 2103 to discover and recover substantial property held by Enrique C. Molina, which allegedly belonged to the decedent's estate.  The matter proceeded to a nonjury trial on the petitioners' claim for the imposition of a constructive trust on 15% of the proceeds Molina received from the sale of his interest in various entities located in Mexico.  The petitioners argued that the decedent acquired a beneficial interest upon Molina's implied continuing promise to that effect and that the decedent, in reliance thereon, transferred certain sums of money to Molina in 1971 and between November 1984 and July 1985.  At the trial, the petitioners sought to introduce certain testimony and evidence which the Surrogate's Court precluded as inadmissible hearsay, among other things.  In a decision dated May 15, 2020, the court determined, inter alia, that the petitioners failed to establish by clear and convincing evidence a promise, reliance, and unjust enrichment, elements of a claim for the imposition of a constructive trust.  The court issued a decree dated August 3, 2020, upon the decision, in effect, denying the petition and dismissing the proceeding.

“In reviewing a determination made after a nonjury trial, this Court's authority is as broad as that of the trial court and includes the power to 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” (Home Constr.  Corp. v. Beaury, 149 AD3d 699, 701;  see Annan v New York State Off. of Mental Health, 165 AD3d 1020, 1021).  “[W]here the trial court's findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations” (Annan v New York State Off. of Mental Health, 165 AD3d at 1021–1022 [internal quotation marks omitted];  see Matter of Tenzer, 144 AD3d 1044, 1045).

Generally, the imposition of a constructive trust is appropriate “when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest” (Sharp v. Kosmalski, 40 N.Y.2d 119, 121 [alteration and internal quotation marks omitted];  see Seidenfeld v. Zaltz, 162 AD3d 929, 934).  Although as an equitable doctrine its application to particular circumstances is susceptible of some flexibility, to impose a constructive trust a party generally must establish by clear and convincing evidence a confidential or fiduciary relationship, a promise, express or implied, a transfer in reliance thereon, a breach of the promise, and unjust enrichment (see Bankers Sec. Life Ins. Socy. v Shakerdge, 49 N.Y.2d 939, 940;  Seidenfeld v. Zaltz, 162 AD3d at 934).  “[T]he constructive trust doctrine serves as a fraud-rectifying remedy rather than an intent-enforcing one” (Bankers Sec. Life Ins. Socy. v. Shakerdge, 49 N.Y.2d at 940 [internal quotation marks omitted] ).

Here, in light of the evidence presented at trial, and affording the Surrogate's Court's credibility determinations due deference, there is no basis to disturb the court's determination that the petitioners failed to prove the elements of a promise, reliance, and unjust enrichment by clear and convincing evidence (see generally Edward v. Walsh, 169 AD3d 865, 868;  Sanxhaku v. Margetis, 151 AD3d 778, 779–780).  The petitioners' challenges to certain of the court's evidentiary rulings are without merit (see CPLR 4547;  People v. Reynoso, 73 N.Y.2d 816, 819).

The parties' remaining contentions either are without merit or need not be considered in light of our determination.

Accordingly, the Surrogate's Court properly, in effect, denied the petition and dismissed the proceeding.

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.