In Ladone v. Ladone, 121 AD2d 512 (2nd Dept. 1986), as here, such an interest arose on the signing of a contract of sale.Summary of this case from Bolender v. Ronin Prop. Partners, LLC
June 16, 1986
Appeal from the Supreme Court, Nassau County (Christ, J.).
Judgment dated January 25, 1984, affirmed.
The plaintiff in action No. 1, Ann Marie Ladone, is awarded one bill of costs payable by the defendant in action No. 1 Anna Ladone.
In order to impress a constructive trust upon a property interest, the plaintiff must prove: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see, McGrath v. Hilding, 41 N.Y.2d 625, 629; Sharp v. Kosmalski, 40 N.Y.2d 119, 121; Coco v Coco, 107 A.D.2d 21, 24). The trial court's determination that Ann Marie Ladone sustained her burden of proof with respect to each of these four elements was correct and not against the weight of the evidence. In this regard, great consideration should be given to the trial court's findings, since it had a better opportunity to evaluate the credibility and probative value of the testimony of each witness, especially in the context of the family relationship presented by the facts of this case (see, e.g., Smith v. Smith, 273 N.Y. 380).
The appellant Anna Ladone's main contention on appeal, i.e., that the plaintiff Ann Marie Ladone did not possess an interest in the property prior to Anna Ladone's promise to reconvey it, is without merit. The appellant is correct in asserting that in order to establish that there was a transfer in reliance on a promise to reconvey, "it must be shown that the party seeking to impose the constructive trust had some interest in the property prior to obtaining the promise that the property would be conveyed" (Bontecou v. Goldman, 103 A.D.2d 732, 733; see, Scivoletti v. Marsala, 97 A.D.2d 401, 402, affd 61 N.Y.2d 806; Matter of Wells, 36 A.D.2d 471, 474, affd 29 N.Y.2d 931). However, when Ann Marie Ladone signed the contract to purchase the real estate in question, she was immediately vested with equitable title therein (see, Carthage Tissue Paper Mills v. Village of Carthage, 200 N.Y. 1, 3; Williams v. Haddock, 145 N.Y. 144, 150; 62 N.Y. Jur, Vendor and Purchaser, § 93, at 343). Accordingly, when Ann Marie Ladone relinquished this property interest in reliance on Anna Ladone's promise to reconvey, the third element necessary to impress a constructive trust, to wit, a transfer in reliance on a promise, was established (cf. Bontecou v. Goldman, supra, p 733; Scivoletti v. Marsala, supra, p 402; De Forrest v. Bruce, 120 A.D.2d 698). Mangano, J.P., Gibbons, Brown and Kooper, JJ., concur.