Tyree v. Henn

• Decision Date: 18 September 2013
• Citation: 971 N.Y.S.2d 319,2013 N.Y. Slip Op. 05895,109 A.D.3d 906
• Parties: Caroline P. TYREE, plaintiff-appellant, v. Donald E. HENN, Jr., defendant third-party plaintiff-respondent. Samuel J. Raffa, et al., third-party defendants-appellants. (Appeal Nos. 1 and 3) Caroline P. Tyree, plaintiff, v. Donald E. Henn, Jr., defendant third-party plaintiff-respondent. Samuel J. Raffa, et al., third-party defendants-appellants. (Appeal No. 2).
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 906

971 N.Y.S.2d 319

2013 N.Y. Slip Op. 05895

Caroline P. TYREE, plaintiff-appellant,

v.Donald E. HENN, Jr., defendant third-party plaintiff-respondent.

Samuel J. Raffa, et al., third-party defendants-appellants. (Appeal Nos. 1 and 3)

Caroline P. Tyree, plaintiff,

v.Donald E. Henn, Jr., defendant third-party plaintiff-respondent.

Samuel J. Raffa, et al., third-party defendants-appellants. (Appeal No. 2).

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

Sept. 18, 2013.

England & England, P.C., Centereach, N.Y. (Louis C. England of counsel), for plaintiff-appellant, and DeJesu Maio, Huntington, N.Y. (Joseph C. DeJesu of counsel), for third-party defendants-appellants (one brief filed).

Kutner & Gurlides, Mineola, N.Y. (Stephen D. Kutner of counsel), for defendant third-party plaintiff-respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

In an action for a divorce and ancillary relief, (1) the plaintiff and the third-party defendants appeal from a decision of the Supreme Court, Suffolk County (Garguilo, J.), dated December 2, 2011, made after a nonjury trial, (2) the third-party defendants appeal from a judgment of the same court entered February 9, 2012, which, upon the decision, is in favor of the defendant third-party plaintiff and against them, imposing a constructive trust upon certain real property in the sum of $58,500, and (3) the plaintiff and the third-party defendants appeal, as limited by their brief, from stated portions of an order of the same court dated April 12, 2012, which, inter alia, denied that branch of the third-party defendants' motion which was for an award of costs, disbursements, and a reasonable attorney's fee.

ORDERED that the appeals from the decision dated December 2, 2011, are 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 appeal by the plaintiff from the order dated April 12, 2012, is dismissed, as she is not aggrieved thereby ( seeCPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132); and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the order dated April 12, 2012, is affirmed insofar as appealed from by the third-party defendants; and it is further,

ORDERED that one bill of costs is awarded to the defendant third-party plaintiff.

Donald E. Henn, Jr., was, at all relevant times, the son-in-law of Samuel J. Raffa and Patricia Raffa (hereinafter together the Raffas). Henn was married to the Raffas' daughter, Caroline P. Tyree, and the couple lived together with Tyree's four children in a house that they had been renting. Henn and Tyree wanted to purchase a house for themselves, but they did not have enough money and they were unable to obtain a mortgage. The Raffas offered to help. The Raffas contributed some of their own money to certain sums contributed individually by Henn and Tyree, and purchased a residential property (hereinafter the subject premises) solely in the Raffas' name. The Raffas purchased the subject premises so that Henn, and Tyree and her four children, could live there as a family. Shortly thereafter, however, Henn and Tyree separated. Henn never resided in the subject premises.

Tyree commenced this action for a divorce and ancillary relief, and Henn commenced a third-party action against the Raffas seeking to impose a constructive trust upon the subject premises in the sum of $58,500, the amount that he allegedly contributed to its purchase. In a judgment entered February 9, 2012, after a nonjury trial, the Supreme Court imposed a constructive trust upon the premises in the sum of $58,500. The Raffas appeal.

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 court had the advantage of seeing and hearing the witnesses ( 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;Marini v. Lombardo, 79 A.D.3d 932, 933, 912 N.Y.S.2d 693).

“A constructive trust is an equitable remedy and its purpose is to prevent unjust enrichment” ( Marini v. Lombardo, 79 A.D.3d at 933, 912 N.Y.S.2d 693 [citation omitted]; see Henning v. Henning, 103 A.D.3d 778, 779–780, 962 N.Y.S.2d 189). To obtain the remedy of a constructive trust, a party generally is required to demonstrate four factors: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment flowing from the breach of the promise ( see McGrath v. Hilding, 41 N.Y.2d 625, 629, 394 N.Y.S.2d 603, 363 N.E.2d 328;Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721;Ewart v. Ewart, 78 A.D.3d 992, 993, 912 N.Y.S.2d 265). However, these factors, or elements, serve only as a guideline, and a constructive trust may still be imposed even if all four elements are not established ( see Simonds v. Simonds, 45 N.Y.2d 233, 241, 408 N.Y.S.2d 359, 380 N.E.2d 189;Henning v. Henning, 103 A.D.3d at 780, 962 N.Y.S.2d 189;Marini v. Lombardo, 79 A.D.3d at 933, 912 N.Y.S.2d 693;see also Rocchio v. Biondi, 40 A.D.3d 615, 616, 835 N.Y.S.2d...