Yau v. Yau

Yau v Yau (2021 NY Slip Op 51029(U)) [*1] Yau v Yau 2021 NY Slip Op 51029(U) [73 Misc 3d 134(A)] Decided on October 22, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on October 22, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2021-38 K C Leo Yau, Respondent, against Lucy Yau, Appellant. Wenig Saltiel, LLP (Dan M. Blumenthal of counsel), for appellant. Donald Eng, for respondent. Appeal from a decision of the Civil Court of the City of New York, Kings County (Cheryl J. Gonzales, J.), dated October 31, 2019, deemed from a final judgment of that court entered November 4, 2019 (see CPLR 5512 [a]). The final judgment, upon the decision, after a nonjury trial, awarded landlord possession in a holdover summary proceeding. ORDERED that the final judgment is affirmed, without costs. In this holdover proceeding to recover possession of a condominium apartment and rent arrears, tenant interposed an affirmative defense that she "h[eld] a constructive trust on the subject premises." At a nonjury trial, there was evidence presented that the parties are siblings; that landlord, the owner of the apartment, allowed tenant to reside in the apartment; that tenant made payments for her occupancy that "covered" landlord's costs, including his mortgage and monthly maintenance; that landlord reserved one of the two bedrooms in the apartment for his own occasional use; and that tenant had made occasional payments directly to the condominium board for maintenance and repairs to the apartment. Following the trial, insofar as is relevant to this appeal, by decision dated October 31, 2019, the Civil Court awarded landlord possession. Tenant's appeal from the decision is deemed from the final judgment entered upon the decision on November 4, 2019 (see CPLR 5512 [a]). A claim of a constructive trust can be asserted as an affirmative equitable defense to a [*2]summary proceeding (see Fizzinoglia v Capozzoli, 58 Misc 3d 149[A], 2018 NY Slip Op 50081[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Freire v Fajardo, 28 Misc 3d 137[A], 2010 NY Slip Op 51453[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). "A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him or her into a trustee" (Bekas v Valiotis, 191 AD3d 937, 938 [2021] [internal quotation marks and brackets omitted]; see Kaprov v Stalinsky, 145 AD3d 869, 870 [2016]). "To obtain the remedy of a constructive trust, a party is generally required to establish four factors, or elements, by clear and convincing evidence: (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" (Delidimitropoulos v Karantinidis, 186 AD3d 1489, 1490 [2020]; see Hernandez v Florian, 173 AD3d 1144, 1145 [2019]; Sanxhaku v Margetis, 151 AD3d 778, 779 [2017]). "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, provided that those factors are substantially present" (Delidimitropoulos v Karantinidis, 186 AD3d at 1490-1491 [internal quotation marks and citations omitted]; see Monterosso v Garguilo, 181 AD3d 586, 586-587 [2020]; Seidenfeld v Zaltz, 162 AD3d 929, 935 [2018]). Here, tenant failed to establish that the elements of a constructive trust were substantially present. Although the parties, as familial relatives, shared a confidential relationship (see e.g. Rowe v Kingston, 94 AD3d 852, 853-854 [2012]; Marini v Lombardo, 79 AD3d 932, 933-934 [2010]; Reiner v Reiner, 100 AD2d 872, 874 [1984]), there is no evidence that landlord made a promise to tenant, express or implied, that tenant would have an interest in the subject apartment; nor is there evidence that tenant's payments, either to landlord or to the condominium board, were made in reliance on such a promise (see Delidimitropoulos v Karantinidis, 186 AD3d at 1491; Monterosso v Garguilo, 181 AD3d at 587; Seidenfeld v Zaltz, 162 AD3d at 935). Tenant's remaining contentions are either without merit or raised for the first time in her reply brief (see Matter of Erdey v City of New York, 129 AD3d 546, 546-547 [2015]; U.S. Bank N.A. v Dellarmo, 128 AD3d 680, 681 [2015]). Accordingly, the final judgment is affirmed. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 22, 2021