KOSLOWSKI v. KOSLOWSKI

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

Harry KOSLOWSKI, a/k/a Harry Murray Koslowski, Appellant, v. Sam KOSLOWSKI, etc., Respondent, et al., Defendant.

Decided: September 30, 2002

SANDRA J. FEUERSTEIN, J.P., CORNELIUS J. O'BRIEN, SANDRA L. TOWNES and BARRY A. COZIER, JJ. McGarry & Simon, New York, NY, (William A. Simon of counsel), for appellant. Jaffe & Asher, New York, NY, (Ira N. Glauber and Gregory E. Galterio of counsel), for respondent.

In an action, inter alia, for an accounting and the imposition of a constructive trust, the plaintiff appeals from (1) a decision of the Supreme Court, Kings County (Douglass, J.), dated September 5, 2000, (2) an order of the same court, dated October 23, 2000, which, in effect, denied his application for leave to reargue the decision, and (3) a judgment of the same court, entered June 7, 2002, which, after a nonjury trial, dismissed the complaint.

ORDERED that the appeals from the decision and the order are dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718) or an order denying reargument (see DeFreitas v. Board of Educ. of City of Mount Vernon Dist. No. 416, 129 A.D.2d 672, 514 N.Y.S.2d 433);  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondent.

 It is well settled that where, as here, a case has been tried without a jury, this court's “power to review the evidence is as broad as that of the trial court, bearing in mind, of course, that due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses” (Universal Leasing Servs. v. Flushing Hae Kwan Rest., 169 A.D.2d 829, 830, 565 N.Y.S.2d 199).   Moreover, the trial court's determination will not generally be disturbed on appeal unless it could not have been reached under any fair interpretation of the evidence (see Greenberg v. Behlen, 220 A.D.2d 720, 633 N.Y.S.2d 189;  Universal Leasing Servs. v. Flushing Hae Kwan Rest., supra).

 Contrary to the plaintiff's contention, the Supreme Court's determination that he failed to establish the elements necessary to grant a constructive trust is supported by a fair interpretation of the evidence.   A constructive trust will be imposed where the evidence establishes that there was a confidential relationship, an express or implied promise, a transfer in reliance on that promise, and unjust enrichment (see Neos v. Neos, 262 A.D.2d 467, 468, 692 N.Y.S.2d 133;  Djamoos v. Djamoos, 153 A.D.2d 871, 545 N.Y.S.2d 596).   Here, the plaintiff failed to present credible evidence sufficient to establish that the respondent promised to return a 50% interest in certain real properties to him or that the respondent was unjustly enriched by the failure to return such interest.

The plaintiff's remaining contention is without merit.

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