MODICA v. MODICA

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

John MODICA, et al., respondents-appellants, v. Salvatore MODICA, appellant-respondent.  (Action No. 1).

John Modica, et al., respondents-appellants, v. Salvatore Modica, appellant-respondent, et al., respondent.  (Action No. 2).

Decided: February 28, 2005

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, SONDRA MILLER, and FRED T. SANTUCCI, JJ. Galison & Galison, Mineola, N.Y. (Edward A. Galison of counsel), for appellant-respondent. Goldweber & Hershkowitz, Mineola, N.Y. (Leland L. Greene, Marcia Berger Hershkowitz, and Max Goldweber of counsel;  Lillian Factor on the brief), for respondents-appellants.

In an action, inter alia, to impose a constructive trust on certain real property, and a related action, among other things, to enjoin the defendants from denying the plaintiffs access to certain real property, Salvatore Modica, the defendant in Action No. 1 and a defendant in Action No. 2, appeals from so much of a judgment of the Supreme Court, Queens County (Hart, J.), dated June 19, 2003, as, after a joint nonjury trial, dismissed his counterclaims in Action No. 1, and the plaintiffs cross-appeal from stated portions of the judgment which, inter alia, dismissed the complaints, and appeal from an unsigned transcript of the same court dated March 10, 2003, and stated portions of an order of the same court dated June 12, 2003, which, inter alia, in effect, denied their motion for recusal and granted the motion of the defendants pursuant to CPLR 4401 to dismiss both actions.

 ORDERED that the appeal from the unsigned transcript is dismissed, as no appeal lies from an unsigned transcript (see Hincapies v. New York City Tr. Auth., 1 A.D.3d 561, 767 N.Y.S.2d 645);  and it is further,

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Salvatore Modica.

 The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the actions (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order are brought up for review and have been considered on appeal from the judgment (see CPLR 5501[a][1] ).

 The elements needed for the imposition of a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Simonds v. Simonds, 45 N.Y.2d 233, 408 N.Y.S.2d 359, 380 N.E.2d 189;  Sharp v. Kosmalski, 40 N.Y.2d 119, 386 N.Y.S.2d 72, 351 N.E.2d 721;  Cerabono v. Price, 7 A.D.3d 479, 775 N.Y.S.2d 585;  lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092 [Feb. 10, 2005];  Levy v. Moran, 270 A.D.2d 314, 704 N.Y.S.2d 609;  Ostreicher v. Ostreicher, 238 A.D.2d 392, 657 N.Y.S.2d 357).   The plaintiffs failed to set forth evidence establishing that there was a promise, a transfer in reliance, or unjust enrichment.   Therefore, there was no rational process by which the Supreme Court could base a finding in favor of the plaintiffs (see Szczerbiak v. Pilat, 90 N.Y.2d 553, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  Johnson v. Johnson, 8 A.D.3d 625, 778 N.Y.S.2d 905;  Hernandez v. Two E. End Ave. Apart. Corp., 303 A.D.2d 556, 757 N.Y.S.2d 65), and the defendants' oral motion pursuant to CPLR 4401 was properly granted.

 The plaintiffs' motion for recusal failed to set forth proof which required the Supreme Court Justice presiding over the joint trial to recuse himself.  “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal” (People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200).   The plaintiffs failed to set forth any demonstrable proof of bias to warrant the conclusion that the Justice's failure to recuse himself was an improvident exercise of discretion (see Firestone v. Siems, 272 A.D.2d 544, 708 N.Y.S.2d 891;  Anjam v. Anjam, 191 A.D.2d 531, 594 N.Y.S.2d 822;  Manhattan School of Music v. Solow, 175 A.D.2d 106, 571 N.Y.S.2d 958).

The plaintiffs' remaining contentions are without merit.

The contention of the defendant Salvatore Modica regarding dismissal of his counterclaims is unpreserved for appellate review.

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