Rowe v. Kingston

• Decision Date: 10 April 2012
• Citation: 942 N.Y.S.2d 161,94 A.D.3d 852,2012 N.Y. Slip Op. 02664
• Parties: Frederick ROWE, respondent, v. Eva G. KINGSTON, et al., appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02664
94 A.D.3d 852
942 N.Y.S.2d 161

Frederick ROWE, respondent,
v.
Eva G. KINGSTON, et al., appellants.

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

April 10, 2012.

[942 N.Y.S.2d 162]

Darmin Bachu, Richmond Hill, N.Y., for appellants.

Ragano & Ragano, Ozone Park, N.Y. (John J. Lawless of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., L. PRISCILLA HALL, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

[94 A.D.3d 852] In an action to impose a constructive trust upon certain real property, the defendants appeal from a judgment of the Supreme Court, Queens County (Kugelman, Ct. Atty. Ref.), entered November 12, 2010, which, upon a decision of the same court dated November 30, 2009, made after a nonjury trial, is in favor of the plaintiff and against them, imposing a constructive trust on the subject property.

ORDERED that the judgment is affirmed, with costs.

The plaintiff owned a two-family home and resided in it with [94 A.D.3d 853] the defendants, who are his aunt and uncle. In 1999, the plaintiff transferred title to the two-family home to his aunt for no consideration, with the understanding that she would re-deed the property back to him upon his request. The plaintiff's aunt refinanced the property in her name, although the plaintiff, as per their agreement, continued to collect rent and make the mortgage payments. When the plaintiff allegedly failed to make timely mortgage payments, his aunt assumed direct payment of the mortgage. By then, the plaintiff had moved out of the property. However, his aunt and his uncle continued to live there. The defendants took over paying the utility bills and other maintenance of the property, collected rent from the other tenants, and claimed a tax credit for the mortgage payments. In 2003, the aunt added the uncle to the deed, at which time the defendants refinanced the mortgage on the property, drawing on its equity. Following failed discussions between the parties regarding the return of the property to the plaintiff, the plaintiff commenced this action and, after a nonjury trial before a referee, a constructive trust was imposed in his favor.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses ( see Northern Westchester Professional Park Assoc. v....