Burns v. Burns

• Decision Date: 10 July 2019
• Docket Number: Index No. 37327/07,2018–10734
• Citation: 174 A.D.3d 570,106 N.Y.S.3d 167
• Parties: Louis BURNS, Appellant, v. Stephanie BURNS, Respondent.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 570

106 N.Y.S.3d 167

Louis BURNS, Appellant,

v.Stephanie BURNS, Respondent.

2018–10734

Index No. 37327/07

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

Argued - June 4, 2019

July 10, 2019

Reingold & Tucker, Brooklyn, N.Y. (Jordan W. Tucker of counsel), for appellant.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success, N.Y. (Amy B. Marion of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by deleting the provision thereof, in effect, dismissing the third cause of action in the amended complaint, and substituting therefor a provision granting the relief sought in that cause of action; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Kings County, for the entry of an amended judgment directing an accounting to determine the amount to which the plaintiff is entitled.

This action arises out of an agreement dated February 25, 2002, whereby the plaintiff agreed to transfer ownership of two parcels of real property located in Brooklyn at 256 Decatur Street (hereinafter the Decatur property) and 198 Clarkson Avenue (hereinafter the Clarkson property) to the defendant while the plaintiff retained a life estate in both properties, and the defendant agreed, inter alia, that she would not mortgage, lease, sell, rent, encumber, or transfer either property without the express written consent of the plaintiff. In October 2007, the plaintiff commenced this action, alleging that the defendant had mortgaged the Decatur and Clarkson properties without his consent and used the proceeds for her own purposes. In an amended complaint, the plaintiff alleged, inter alia, that the defendant used the proceeds of the improperly obtained mortgages to purchase an additional property located in Brooklyn at 885A Putnam Avenue (hereinafter the Putnam property) and refused to account to the plaintiff for the income from the Decatur and Clarkson properties. In the third cause of action, the plaintiff sought an accounting with respect to the defendant's management of the Decatur and Clarkson properties. In the fourth cause of action, the plaintiff sought the imposition of a constructive trust on the Putnam property. In his prayer for relief, the plaintiff requested, inter alia, an award of punitive damages and an award of attorneys' fees.

Following a nonjury trial, the Supreme Court found that the defendant had breached the 2002 agreement with the plaintiff and that the plaintiff was entitled to a constructive trust with respect to the Decatur and Clarkson properties. The court also directed the defendant to reconvey the Decatur and Clarkson properties to the plaintiff. However, the court, in effect, dismissed the third and fourth causes of action. The court also denied the plaintiff's request for punitive damages and attorneys' fees. The plaintiff appeals.

" ‘In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses’ " ( BNG Props., LLC v. Sanborn, 153 A.D.3d 1221, 1221–1222, 59 N.Y.S.3d 712, quoting BRK Props., Inc. v. Wagner Ziv Plumbing & Heating Corp., 89 A.D.3d 883, 884, 933 N.Y.S.2d 99 ; see Quadrozzi v. Estate of Quadrozzi, 99 A.D.3d 688, 691, 952 N.Y.S.2d 74 ).

Generally speaking, a court may, in its discretion, "grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just" ( CPLR 3017[a] ; see State of New York v. Barone, 74 N.Y.2d 332, 336, 547 N.Y.S.2d 269, 546 N.E.2d...