Wolff v Glick

Wolff v Glick 2012 NY Slip Op 07992 Decided on November 21, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 21, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS, JJ.
2010-08162
(Index No. 3705/09)

[*1]Thomas Wolff, appellant,

v

Julie E. Glick, etc., et al., respondents.




Carl F. Lodes, Carmel, N.Y., for appellant.
Julie E. Glick and Janine Prete, Patterson, N.Y., respondents
pro se (one brief filed).


DECISION & ORDER

In an action, inter alia, to impose a constructive trust upon a business, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Putnam County (Nicolai, J.), dated September 15, 2010, as, upon a decision of the same court dated July 26, 2010, made after a nonjury trial, is in favor of the defendants and against him dismissing the complaint.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

"In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses" (Rowe v Kingston, 94 AD3d 852, 853; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499). "In order to obtain the remedy of a constructive trust, a plaintiff generally is required to demonstrate four factors: (1) a fiduciary or confidential relationship between the parties, (2) a promise, (3) a transfer of some asset in reliance upon the promise, and (4) unjust enrichment flowing from the breach of the promise" (Mei Yun Chen v Mei Wan Kao, 97 AD3d 730, 730; see Sharp v Kosmalski, 40 NY2d 119, 121). Applying these principles, we discern no basis to disturb the Supreme Court's determination. Accordingly, the Supreme Court properly dismissed the plaintiff's cause of action to impose a constructive trust.

The plaintiff's remaining contentions, made in connection with the remaining causes of action, are without merit.
RIVERA, J.P., BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court