Opinion
June 21, 1993
Appeal from the Supreme Court, Queens County (LaFauci, J.H.O.).
Ordered that the judgment is affirmed, with costs.
The defendant is the owner of certain real property in which the plaintiff asserts an interest. After trial, the Supreme Court found, among other things, that the premises in question "were purchased exclusively with the defendant's assets without any contribution * * * from the plaintiff" and that "the defendant has never conveyed in writing an ownership * * * interest in the * * * premises to the plaintiff". The Supreme Court rejected the plaintiff's claim that the property should be subjected to a constructive trust. We agree.
The property in question had never been the subject of a transfer from the plaintiff to the defendant. "We agree with the [Supreme] Court's determination that the equitable remedy of a constructive trust is unavailable inasmuch as there has been no transfer of property to defendant in reliance upon a fiduciary relationship" (Sierra v. Garcia, 168 A.D.2d 277, 278; see, Sharp v. Kosmalski, 40 N.Y.2d 119; Matter of Wells, 36 A.D.2d 471, affd 29 N.Y.2d 931; see also, De Forrest v. Bruce, 120 A.D.2d 698; Kitchner v. Kitchner, 100 A.D.2d 954).
We have examined the plaintiff's remaining contentions and find them to be without merit. Bracken, J.P., O'Brien, Ritter and Copertino, JJ., concur.