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

Suzanne VALVO, Appellant, v. Catherine SPITALE, Respondent.

Decided: May 27, 2003

DAVID S. RITTER, J.P., NANCY E. SMITH, SONDRA MILLER and THOMAS A. ADAMS, JJ. Arnold J. Kaplan (Biaggi & Biaggi, New York, N.Y. [Mario Biaggi, Jr.] of counsel), for appellant. Itkowitz & Harwood, New York, N.Y. (Jay B. Itkowitz and Donald A. Harwood of counsel), for respondent.

In an action, inter alia, to impose a constructive trust on real property, the plaintiff appeals from (1) a decision of the Supreme Court, Kings County (Dowd, J.), dated April 10, 2002, and (2) a judgment of the same court entered May 2, 2002, which, after a nonjury trial and upon the decision, is in favor of the defendant on her counterclaim in the principal sum of $48,608.28, and, in effect, dismissed the complaint.

ORDERED that the appeal from the decision is 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);  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.

The plaintiff seeks to impose a constructive trust upon a house purchased by the defendant, who is her mother, and occupied by the plaintiff and the plaintiff's children.   To warrant the imposition of a constructive trust, a plaintiff must plead and prove four essential elements:  (1) a confidential or fiduciary relationship, (2) a promise, express or implied, (3) a transfer in reliance thereon, and (4) unjust enrichment caused by the breach of the promise (see Sharp v. Kosmalski, 40 N.Y.2d 119, 386 N.Y.S.2d 72, 351 N.E.2d 721;  Sylvester v. Sbarra, 268 A.D.2d 424, 702 N.Y.S.2d 90).   The plaintiff failed to establish entitlement to such relief.   Accordingly, the Supreme Court correctly dismissed her complaint.   Moreover, the Supreme Court correctly awarded the defendant judgment on her counterclaim for money owed for the plaintiff's use and occupancy of the house.

The parties' remaining contentions are without merit.

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