In re Wieczorek

— In a proceeding to impose a constructive trust on certain real property held in the decedent’s name, the executrix, Constance DeSilva, appeals from an order of the Surrogate’s Court, Queens County (Durante, S.), dated March 5, 1990, which, after a hearing, granted the petitioner’s application and directed the appellant to execute a deed transferring a 50% interest in the subject property to the petitioner. Ordered that the order is affirmed, with costs payable by the estate. The petitioner, Genevieve Fusco, and her father, the decedent Constantine Wieczorek, purchased a two-family house in Queens County. Each took a 50% interest as tenants in common. From 1971 until 1981, they lived together in one apartment and the appellant, who is the petitioner’s sister, lived in the other apartment. In 1981, after she was the victim of a violent crime in the house, the petitioner moved out. In August 1981 intending a temporary transfer, she conveyed her interest in the property to the decedent, without consideration. Following the decedent’s death in 1986, the petitioner filed a claim seeking the return of the 50% interest in the property that she conveyed to him, which was rejected by his estate. After a hearing, the Surrogate’s Court imposed a constructive trust on the property, and the estate was ordered to transfer a 50% interest in the property to the petitioner. We affirm. Although the petitioner’s testimony that she did not receive any consideration for the property was inadmissible pursuant to CPLR 4519 (the "Deadman’s Statute”) (see, Fisch, New York Evidence § 283, at 180), other evidence established that no consideration was paid for the petitioner’s interest in the property. Therefore, the admission of the petitioner’s testimony on that issue was harmless error (see, Turner v Danker, 30 AD2d 564). With respect to the merits of the petitioner’s claim, the four requirements of a cause of action to impose a constructive trust are (1) a confidential or fiduciary relationship, (2) a [205] promise, express or implied, (3) a transfer in reliance on that promise, and (4) unjust enrichment (see, Sharp v Kosmalski, 40 NY2d 119, 126). The requirements, however, are not to be rigidly applied (see, Bankers Sec. Life Ins. Socy. v Shakerdge, 49 NY2d 939; Simonds v Simonds, 45 NY2d 233, 241). The ultimate purpose of a constructive trust is to prevent unjust enrichment and it will be imposed where a party holds property "under such circumstances that in equity and good conscience he ought not to retain it” (Miller v Schloss, 218 NY 400, 407; see also, Sharp v Kosmalski, supra). In this case, the existence of a confidential relationship is not disputed. Although there is no indication of an express promise by the decedent to reconvey the petitioner’s interest in the property, a promise can be inferred by the court where property has been transferred in reliance upon a confidential relationship (see, Sharp v Kosmalski, supra, at 122; Tordai v Tordai, 109 AD2d 996, 997). Such is the case here. The petitioner testified that she intended the transfer to be temporary and she was told by an attorney (who is presently representing the estate) that she could unilaterally reclaim her interest in the property. A person is unjustly enriched when it would be unjust for him or her to retain a benefit received, considering the circumstances of the transfer and the parties’ relationship (see, McGrath v Hilding, 41 NY2d 625, 629). The person enriched need not commit any wrongful act (Simonds v Simonds, supra, at 242). Here, the petitioner transferred her interest in the property without receiving consideration, and under the mistaken impression that she could unilaterally reclaim her interest. Further, we note that she did so after she was a victim of a violent crime in her house. To deprive her of the property under the circumstances would be inequitable and would unjustly enrich the estate. O’Brien, Copertino and Pizzuto, JJ., concur.