Gomez v. Eleni, LLC

• Decision Date: 19 November 2014
• Citation: 997 N.Y.S.2d 458,2014 N.Y. Slip Op. 07980,122 A.D.3d 797
• Court: New York Supreme Court — Appellate Division
• Parties: Margaret GOMEZ, appellant, v. ELENI, LLC, et al., respondents.

122 A.D.3d 797

997 N.Y.S.2d 458

2014 N.Y. Slip Op. 07980

Margaret GOMEZ, appellant,

v.ELENI, LLC, et al., respondents.

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

Nov. 19, 2014

Affirmed.

Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Anthony C. Pasca of counsel), for appellant.

Kenneth Cooperstein, Centerport, N.Y., for respondents.

PETER B. SKELOS, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

In an action to impose a constructive trust on certain real property, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated October 18, 2012, which, after a nonjury trial, is in favor of the defendants and against her, dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff and her late husband owned commercial premises in which they operated a family business. The complaint alleged that, in an effort to save the premises from foreclosure, the plaintiff and a close friend, James Loucopoulos, entered into an agreement whereby Loucopoulos agreed to satisfy the existing mortgage and acquire title in the name of his company, the defendant Eleni, LLC (hereinafter Eleni), and hold title for the benefit of the plaintiff for 10 years, during which time Eleni would lease the premises and receive rental income which it would retain in consideration for satisfying the mortgage. The complaint further alleged that Loucopoulos promised to transfer title to the premises back to the plaintiff at the end of 10 years, for no further consideration. In reliance upon the alleged agreement and promise, the plaintiff transferred the premises to Eleni. At the end of the 10–year period, Eleni allegedly refused to transfer title back to the plaintiff, and the plaintiff sought to impose a constructive trust upon the premises. After a nonjury trial, the Supreme Court dismissed the complaint.

“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and the Appellate Division may render the judgment it finds warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses” ( Parr v. Ronkonkoma Realty Venture I, LLC, 65 A.D.3d 1199, 1201, 885 N.Y.S.2d 522; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809). “ ‘Where the findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations' ” ( Papovitch v. Papovitch, 84 A.D.3d 1045, 1046, 923 N.Y.S.2d 209, quoting Praimnath v. Torres, 59 A.D.3d 419, 419–420, 873 N.Y.S.2d 133).

The elements of a cause of action to impose a constructive trust are (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...