Pascoe v. Pascoe

Appeal from an order of Supreme Court, Niagara County (Boniello, III, J.), entered December 13, 2001, which equitably distributed the parties’ marital property after a hearing. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Boniello, III, J.). In addition, we note that the court properly determined that the marital residence was the separate property of defendant and that the interest of plaintiff in the property is limited to her equitable share of any marital funds used to pay the mortgage on the property (see Burgio v Burgio, 278 AD2d 767, 769 [2000]). Here, however, the mortgage was paid from rental income generated by the property (see Pelletier v Pelletier, 242 AD2d 325, 326 [1997], lv denied 91 NY2d 803 [1997]), and thus plaintiff failed to prove that she is entitled to any distribution of the equity in the marital residence, regardless of the amount of that equity. Plaintiff failed to preserve for our review her further contention that she is entitled to the imposition of a constructive trust on defendant’s property and, in any event, that contention lacks merit. Present — Pine, J.P., Hurlbutt, Scudder and Hayes, JJ.