EICKLER v. PECORA

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Supreme Court, Appellate Division, Second Department, New York.

Donald EICKLER, respondent, v. Joseph PECORA, et al., appellants.

Decided: November 29, 2004

ANITA R. FLORIO, J.P., HOWARD MILLER, SONDRA MILLER, and ROBERT A. SPOLZINO, JJ. George W. Echevarria, Ossining, N.Y., for appellants. Bank, Sheer & Seymour, White Plains, N.Y. (Michael S. Bankof counsel), for respondent.

In an action, inter alia, in effect, to impose a constructive trust on certain real property, the defendants appeal from a judgment of the Supreme Court, Westchester County (Colabella, J.), dated January 3, 2003, which, after a nonjury trial, and upon a decision of the same court dated November 15, 2002, among other things, imposed a constructive trust in favor of the plaintiff.

ORDERED that the judgment is affirmed, with costs.

 An action to impose a constructive trust is governed by the six-year statute of limitations under CPLR 213(1) (see Jakacic v. Jakacic, 279 A.D.2d 551, 552, 719 N.Y.S.2d 675;  Mazzone v. Mazzone, 269 A.D.2d 574, 703 N.Y.S.2d 282;  Lucci v. Lucci, 227 A.D.2d 387, 389, 642 N.Y.S.2d 326;  Mattera v. Mattera, 125 A.D.2d 555, 556-557, 509 N.Y.S.2d 831).   Here, the deed transferring the property was dated November 1, 1993, and the action was commenced on October 21, 1999.   Accordingly, this action was timely commenced.

 A court's determination after a nonjury trial should be upheld if it is based on a fair interpretation of the evidence (see Vizzari v. Hernandez, 1 A.D.3d 431, 766 N.Y.S.2d 883;  Southampton Commons Homeowners Assn. v. Southampton Assocs., 268 A.D.2d 580, 581, 702 N.Y.S.2d 848;  Larkfield Landscapers v. Cron, 204 A.D.2d 407, 614 N.Y.S.2d 185).   In order to impose a constructive trust upon real property, a plaintiff must prove:  (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721;  see also Bankers Security Life Ins. Soc. v. Shakerdge, 49 N.Y.2d 939, 940, 428 N.Y.S.2d 623, 406 N.E.2d 440;  Simonds v. Simonds, 45 N.Y.2d 233, 241-242, 408 N.Y.S.2d 359, 380 N.E.2d 189).   In particular, “it must be shown that the party seeking to impose the constructive trust had some interest in the property prior to obtaining the promise that the property would be conveyed” (Bontecou v. Goldman, 103 A.D.2d 732, 733, 477 N.Y.S.2d 192;  see Ladone v. Ladone, 121 A.D.2d 512, 513, 503 N.Y.S.2d 831).

 Here, the Supreme Court's determination that the plaintiff sustained his burden of proof with respect to each of these four elements was correct and not against the weight of the evidence.   The plaintiff demonstrated that he relied on the defendants' promises that the plaintiff would own the property and that the defendants' participation in the transaction would be limited to co-signing the mortgage loan.   The plaintiff demonstrated at trial that he contributed his time and money to the purchase and maintenance of the subject property, making a $16,000 down payment for the purchase of the property in reliance on the defendants' promise.   This was sufficient to satisfy the “transfer in reliance” element (Matter of Bayside Controls, 295 A.D.2d 343, 346, 743 N.Y.S.2d 153;  Gottlieb v. Gottlieb, 166 A.D.2d 413, 414, 560 N.Y.S.2d 477;  Lester v. Zimmer, 147 A.D.2d 340, 342, 542 N.Y.S.2d 855).

The defendants' remaining contentions are without merit.

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