Lester v. Zimmer

• Citation: 147 A.D.2d 340,542 N.Y.S.2d 855
• Parties: Jodi LESTER, Respondent, v. Carol ZIMMER et al., Appellants.
• Decision Date: 22 June 1989
• Court: New York Supreme Court — Appellate Division

Page 855

542 N.Y.S.2d 855

147 A.D.2d 340

Jodi LESTER, Respondent, v. Carol ZIMMER et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

June 22, 1989.

Zimmer, Victor, Schwartz & Bernstein, P.C. (Donald M. Bernstein, of counsel), New York City, and Ricken, Goldman, Sussman & Blythe, Kingston, for appellants.

Francello, Van Benschoten & Bing, P.C. (David Van Benschoten, of counsel), Saugerties, for respondent.

Before KANE, J.P., and WEISS, MIKOLL, LEVINE and MERCURE, JJ.

WEISS, Justice.

This is an action to compel defendants to convey to plaintiff her undivided one-half interest in certain property located in the Town of Woodstock, Ulster County. The factual basis for this claim is as follows. Plaintiff maintains that she and defendant Michael Zimmer cohabited in an apartment in New York City for almost 10 years during which period each contributed time, money and work toward construction of a dwelling on land in Woodstock owned by defendant Carol Zimmer, Michael's mother. Plaintiff contends that Carol promised to give title to the house and six acres of land to her and Michael. In 1983 the couple ended their personal relationship but alternatively utilized the house. They also shared the cost of taxes and maintenance. After Michael married in 1986, plaintiff was ostensibly locked out of the house and told to stay away. She commenced this action against defendants seeking to impose a constructive trust upon the real property and a judgment ordering partition. Defendants moved for summary judgment dismissing the complaint based solely on the ground that plaintiff never transferred any property to defendants and that Carol owned the property at all times. Supreme Court's order denying the motion, without explanation, has given rise to this appeal.

A constructive trust is an equitable remedy available "[w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest" (Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378). Generally, the remedy requires four elements: (1) a confidential or fiduciary relationship, (2) a promise, expressed or implied, (3) a transfer in reliance thereon, and (4) unjust enrichment (Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721). Notably, "[t]hese elements are not rigid, but are flexible considerations for the court to apply in determining whether to impose a constructive trust" (Hornett v. Leather, 145 A.D.2d 814, 815, 535 N.Y.S.2d 799, lv. denied 74 N.Y.2d 603, 543 N.Y.S.2d 396, 541 N.E.2d 425 [1989]. Defendants' sole argument is that plaintiff cannot satisfy the third element, as a matter of law, because she did not own or transfer any interest in the disputed property. Plaintiff contends that her contribution of money and work toward construction of the house satisfies the "transfer in reliance" element. We accept the latter premise.

We recognize that the case law cited by defendants holds that a party may not impress a constructive trust on realty absent the relinquishment of some interest in the parcel in reliance on a promise to convey (see, Bontecou v. Goldman, 103 A.D.2d 732, 733, 477 N.Y.S.2d 192; Scivoletti v. Marsala, 97 A.D.2d 401, 467 N.Y.S.2d 228, affd. 61 N.Y.2d 806, 473 N.Y.S.2d 949, 462 N.E.2d 126; Matter of Wells, 36 A.D.2d 471, 474, 321 N.Y.S.2d 200, affd. 29 N.Y.2d 931, 329 N.Y.S.2d 322, 280 N.E.2d 95). The law of constructive trusts, however, is not confined to reconveyance situations. The third element necessary to impress a constructive trust speaks to a transfer in reliance on a promise without qualifying the underscored term. In our view, the transfer concept extends to instances, as here, where funds, time and effort are contributed in reliance on a promise to share in the result ( see, e.g., Spodek v. Riskin, 150 A.D.2d 358, 540 N.Y.S.2d 879; Washington v. Defense, 149 A.D.2d 697, 540 N.Y.S.2d 491). This court has recognized that a constructive trust may be imposed in the marital context where the proponent has extended funds or effort in reliance on a promise (see, Tidball v. Tidball, 93 A.D.2d 954, 955, 463 N.Y.S.2d 287; Motyl v. Motyl 35 A.D.2d 1051, 1052, 317 N.Y.S.2d 73; see also, Tomaino...