Leicht v Carretta

[*1] Leicht v Carretta 2009 NY Slip Op 50799(U) [23 Misc 3d 1117(A)] Decided on March 4, 2009 Supreme Court, Suffolk County Pastoressa, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 4, 2009
Supreme Court, Suffolk County

Robert K. Leicht, Plaintiff,

against

Claire M. Carretta, Defendant.



06-28949



COURTEN & VILLAR, P.L.L.C.

Attorneys for Plaintiff

33 Kings Highway

Hauppauge, New York 11788

RICHARD M. GORDON & ASSOCIATES, P.C.

Attorneys for Defendant

780 New York Avenue, Suite 3

Huntington, New York 11743

Joseph C. Pastoressa, J.

It is, ORDERED that this motion (007) by the defendant, Claire M. Carretta, pursuant to CPLR 3212 for summary judgment dismissing the complaint is granted and the complaint of this action is dismissed with prejudice.

This action was commenced on or about October 16, 2006 wherein the plaintiff, Robert [*2]K. Leicht, has set forth causes of action for actual and constructive fraud, for a constructive trust to be imposed on certain real property known as 102 Grandview Street, Huntington, and a 401-K retirement account, and for partition of the real property and the 401-K retirement account to enable the plaintiff to receive his equitable share.

The parties' relationship terminated in October 2006 when the defendant removed the plaintiff's personal belongings from the house to the garage and denied the plaintiff access to the house by changing the locks. The plaintiff thereafter filed a notice of pendency against the real property and interposed motion (002) for preliminary injunctive relief to preclude the defendant from selling, transferring, encumbering or leasing the residential real property and precluding the plaintiff from the premises which application was denied by order dated January 17, 2007 (Burke, J.) because the notice of pendency had been filed thus not availing the plaintiff to the injunctive relief sought as such action constituted an election of provisional remedies under CPLR 6001 (LaCarruba v. Naclerio,1AD3d 571). The plaintiff also sought to be restored to the house and as beneficiary of the subject 401K account and to enjoin the defendant from selling, borrowing against, encumbering or otherwise altering said account during the pendency of this action, but this was denied as well because the evidentiary proof submitted by the plaintiff failed to clearly establish a likelihood of success on the merits.

Cross-motion (003) by the defendant for summary judgment dismissing the plaintiff's complaint and for permanent injunctive relief was also denied without prejudice with leave to renew upon the completion of discovery by order dated January 17, 2007 (Burke, J.) due to the existence of factual issues. The demand for injunctive relief was denied as said demands arose out of claims not pleaded and not the subject of this action.

In the instant motion, the defendant, Claire M. Carretta, seeks summary judgment dismissing the complaint on the basis that the plaintiff has no ownership interest in the subject real property where he resided with the defendant for twenty two years, that he paid no rent for the use of the home and yard to conduct his landscaping business, that the defendant worked for the plaintiff for twenty years in the landscaping business receiving no salary for her services, that the plaintiff never paid her mortgage as she received one-half interest in the house as a result of her divorce settlement and purchased the remaining one-half interest with money that she borrowed from her parents in a mortgage held by her father, that the plaintiff did not pay into her retirement account which is solely in her name, and that their financial arrangement was simply to share living expenses.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers [*3](Winegrad v N.Y.U. Medical Center, supra ). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form (Joseph P. Day Realty Corp. v Aeroxon Prods., 148 AD2d 499 [1979]) and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014 [1981]). Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

In support of this motion, the defendant has submitted, inter alia, her affidavit; an attorney's affirmation; the affidavit of Charles Grayson; a copy of the summons and complaint and answer; a copy of the transcript of the examination before trial of Robert Leicht; a copy of the Agreement between Robert W. Carretta and Claire Carretta; a copy of the modification agreement entered into between Robert W. Carretta and Claire Carretta; a copy of the deed for the subject real property; and a copy of the mortgage note dated December 24, 1986.

In opposing this application, the plaintiff has submitted his affidavit; the cover page of a car insurance policy marked paid May 28, 2004 for a 1986 Cadillac Deville; a copy of the defendant's divorce agreement and modification agreement with Robert Carretta; a copy of a deed for the subject property; a copy of the transcript of the "continued examination before trial of Claire M. Carretta; copies of cancelled checks and a bank statement; a copy of the enrollment form for Claire M. Carretta for contributions into a retirement account pension stamped June 12, 2003; a copy of page 140 of the transcript of the examination before trial of Robert K. Leicht; and a copy of a health care proxy dated March 18, 1999.

The modification agreement made December 24, 1986 between Robert W. Carretta and Claire Carretta modified the separation agreement of November 20, 1982 to show that the marital residence currently in the name of both parties is conveyed from Robert W. Carretta to Claire Carretta, stating Robert W. Carretta conveyed all his right, title and interest to the premises at 102 Grandview Street, Huntington, New York for the sum of $58,000.00 and Claire Carretta waiving her $100.00 per month maintenance from Robert Carretta. The deed for this conveyance was dated December 24, 1986.

The mortgage note in the amount of $70,000.00 dated December 24, 1986 provided that Claire M. Carretta promised to pay to Charles M. Grayson and Rosemary Grayson the amount of $641.11 per month at 9 1/4% interest per annum from January 24, 1987 until December 24, 2006 when the entire remaining unpaid principal balance shall be due and payable. This note was recorded February 26, 1987.

The complaint alleges that although the deed to the real property located at 102 Grandview Street, Huntington, is in the name of the defendant, Claire Carretta, she promised [*4]Robert K. Leicht, both expressly and implicitly that he would be entitled to an equitable share of the home, and that the plaintiff contributed monetarily in a sum equal to that of the monthly mortgage payment, plus a percentage of the carrying charges and utilities as well as for joint expenses and costs related to their relationship and ownership and improvement of the subject property. It is further alleged that the plaintiff was promised he would be able to use and enjoy the house for the duration of their lives together and upon the defendant's death her equitable share would inure to the plaintiff's benefit, but on September 8, 2006, the defendant told the plaintiff that he must vacate the premises. The plaintiff claims he was therefore deprived of any equitable share of the equity of the real property and seeks to impose a constructive trust on the real property and the 401K account, and to partition the real property and 401 K account so that he may obtain his claimed equitable share.

Ms. Carretta testified at her continued examination before trial that she and Mr. Leicht resided together from August 1984 to October 2006. She stated she would occasionally refer to the house at 102 Grandview Street as "our house" in the context of where you live and not necessarily whether or not you own it. Mostly, she stated, she referred to the house as "my house" which used to infuriate him.

Ms. Carretta testified that during the time she and Mr. Leicht lived together, she told people that she and Mr. Leicht hang drapes together because "boyfriend sounded lame." She referred to him as "Bob" to her children. She stated she did refer to him as her domestic partner which she stated meant that somebody lives with somebody out of marriage; they are there permanently, sharing living expenses. She testified that they shared living expenses in that they shared utilities and cable, she paid the first mortgage on the house, real estate taxes and homeowner's insurance; Mr. Leicht paid a loan to her father by giving her cash each month towards the payment, which she referred to as a mortgage which equaled the payment she made on the first mortgage and real estate taxes combined. That first mortgage was paid off in 1998 and Ms. Carretta testified that Mr. Leicht never made a payment on the first mortgage. The second mortgage was forgiven by her father in July 2006 as a gift to her and it would have been paid off in December, 2006. She stated Mr. Leicht did not pay for all the grocery expenses and used her personal telephone for his landscaping business. He paid for repairs on the cars, maintained the pool, paid for dinner when they went out, bought outdoor furniture, and also bought gifts for her such as couches and other things.

Ms. Carretta testified she and Mr. Leicht initially shared a bedroom at the house until 1998, then he slept on the couch. When he first moved in with her, he did not bring any possessions, but then began accumulating things such as tools, machinery, landscaping equipment such as lawn movers, leaf blowers, cement mixers and other machinery used for his landscaping business, vehicles, fishing equipment, various boats, remote control cars, computer equipment and games, and a collection of wooden boxes.

Ms. Carretta testified that for the ten year period prior to their separating, they did not often share meals together as his job would keep him out late or he would stop by his friends for a couple of beers and arrived home late or after she had gone to bed. She tried to end their [*5]relationship in December 2004 but he talked her out of it by saying everything would be ok. She stated he started staying out late at night and started to drink heavily during that period; she did not like the friends he was hanging out with and his business went downhill. On August 24, 2006, she testified, she told Mr. Leicht that she thought they should go their separate ways. He did not move out right away, but stayed at a camper he owned with one of his friends until he moved out.

Robert Leicht testified at his examination before trial that he has never been married and first met Claire Carretta in the summer of 1984. He stated Claire Carretta was divorced and had two children, John and Lisa, 10 and 12 years of age respectively. They began to live together full time at 102 Grandview Street in August 1984 and that he contributed an amount which he could not remember, on a weekly, biweekly, monthly or as needed basis, but he could not remember, for electric, food and other household expenses by giving the money to Claire in the form of cash. He stated he did not keep records for the amount of money he gave her, and stated the amount he paid changed as the bills changed. He testified he did not give her all of his income and earnings and retained what was left over after expenses were taken out. Ms. Carretta testified that her entire paycheck was deposited into the checking account they shared.

Mr. Leicht testified that he and Claire Carretta both contributed to the joint bank account they maintained. He stated that before 1986 Claire Carretta and her ex-husband owned the house; when the divorce went through Claire got half the house, and she purchased the other half of the house from her ex-husband pursuant to a mortgage from her father, Charles Grayson and his wife Rosemary. Mr. Leicht stated he never had any dealings with Mr. Grayson about the subject of his providing money for Claire to buy an interest in the house, but stated he started making what he called "mortgage payments." He thought that the amount of money he contributed went up after Ms. Carretta bought the house but he could not remember how much.

Mr Leicht testified he was a landscaper and did not get a paycheck every week so he gave money when he got it. He stated they lived together for 22 years, and that in the last few years he gave her $162 a week cash, and then there were other payments, but he did not know how much or what it covered. He stated Claire did the bills. He stated the copies of the bank account statements from North Fork Bank would not help him determine the amount of money he gave to Claire towards household expenses. In checking the deposit slips, he could not determine what were his deposits with any certainty as he stated Claire did all the banking. He did not know if he paid anyone directly for household expenses, but thought he paid somebody to paint the house, but had no receipts; paid for a built-in pool, but couldn't remember how much; he could not remember any other specifics except for an astronomical veterinarian bill which he stated he paid in cash for their two purebred dogs for which he had no paperwork; new doors and a washer and dryer which were paid out of the joint account; $3,358.45 for new bathroom fixtures, but he did not know the source of the money used to pay for them; he stated he paid for all mechanical bills for their cars (1994 Eldorado and 1986 Cutlass for Claire, 1985 Astro Van, 1980's Plymouth Horizon, 1994 Blazer, 1988 Ford pickup truck, 1939 Chevrolet, 1967 Mustang, 1986 Corvette, 1987 F350 Ford truck, 1999 F550 Ford truck and 1979 Cadillac in his name). [*6]

Mr. Leicht testified he did not remember when Ms. Carretta talked to him about having an ownership interest in the house after she bought it. He could not remember the sum and substance of any conversation, but it was his understanding that he was contributing to and sharing the house and the expenses for it to be theirs. He stated it was verbalized that he would be contributing money to pay household expenses other than specifically to the house, but he did not remember the specifics, and from the beginning he tried to contribute what he thought was half of the living expenses, but he did not remember what expenses he was contributing to. He stated he had a conversation with Ms. Carretta that when the mortgage payment was done that they should get a little vacation house somewhere, maybe Ocean City, Maryland, because he was used to making the mortgage payment. He could not remember what Ms. Carretta said to him about having an ownership interest in the house at 102 Grandview, but stated they referred to the house as their house. He stated that Ms. Carretta never said to him that a certain amount of money that he was paying on a periodic basis throughout the course of a year was to purchase an interest in the house and that she never used the word "purchase." He stated he made one mortgage payment of $641 a month which Ms. Carretta paid to Charles Grayson, her father, and they shared other expenses for the house. He also stated he did not exactly give her $641 a month, that it was in the money he contributed which varied from year to year and he could not state the most he ever gave in any periodic payment. Mr. Leicht testified they had nothing in writing between him and Ms. Carretta concerning his acquiring an ownership interest in 102 Grandview, and that he was not aware of her ever telling anyone in his presence that he was going to obtain an ownership interest in 102 Grandview. She never said in those words that she would give him an "equitable share" of the house. He stated he expressed an interest in having his name on the deed to the house around the time they had a will and health care proxy made in 1999. He also stated that throughout their entire relationship she called the house "our house" and that he asked her many times since the 1990's to convey an interest in the house to him, but he could not remember whether or not she said yes to his request for an interest in the house.

Mr. Leicht testified that almost everyone who knew them thought they were husband and wife and she would refer to him as "husband" sometimes to repair men and their new next door neighbor, and just about everyone who came for their "craft business" which they operated in the 1990's. Mr. Leicht testified Claire never used the name Claire Leicht. She did the laundry, cooking, cleaning and work around the house. He stated he did little miscellaneous things such as painting or building a piece of furniture or fixing a light, things like that. In the 1980's he repaired the swimming pool ($3,000.00), did some brick work around the pool over the years. He said he constructed four ponds with pools and a little stream on the property, and landscaped the property, put in a rock wall, bricked over the existing cement walkway, put in a river-rock path, put in plantings in the 1980's, built a cedar fence around the pool, sodded the backyard a couple of times, put a four-seasons room behind the garage for storage which room he received from a customer for renovating his house, he painted rooms, built radiator covers, put beadboard and sheetrock in the back hall, put in insulation, and redid the bathroom. He did not know how much money he spent and stated he had no receipts. Pursuant to a barter agreement, a friend of his put in a new hot water heater and a used hot tub in the backyard which hot tub he used. He stopped contributing to the household expenses in September 2006. Mr. Leicht testified he is [*7]claiming a fifty percent share of the house.

Mr. Leicht also testified that Ms. Carretta was employed by Leicht Brothers Landscaping, the landscaping business he operated with his brother, to do all their paper work, but she was not paid as "it was just something she did out of love." The business operated out of the house at 102 Grandview, with a truck, landscape trailer, hand tools in the garage, leaf blowers, commercial lawnmowers, wood, chainsaws, and mechanical equipment, but he did not pay Ms. Carretta for the use of her house and property for his business. The house telephone number was his business phone number. The corporation did not pay the telephone bills for the use of that telephone number. When asked about his 2005 corporate tax return submitted to the IRS for Leicht Brothers Landscaping, he stated the compensation of the officers, the plaintiff and his brother, was $16,500.00, but he stated he did not know if that was what he earned. He stated that sometimes he received money from customers and did not report all of the money that he received to Ms. Carretta who did his books, but testified he reported to her all the cash he received. He wouldn't report tips. He would sometimes tell Ms. Carretta not to make an entry into the books. The 1995 compensation to officers was $4,400 and ordinary income was $678; in 1996 compensation to officers was $4,950; in 1997 compensation to the officers was $4,400; in 1998 the compensation to the officers was $12,650 and ordinary income was $9,924, and the adjusted gross income was $26,847; in 1999 compensation to the officers of the corporation was $9,350 and adjusted gross income was $20,960; in 2000 his adjusted gross income was $25,007; in 2002, his adjusted gross income was $33,253 and compensation to officers was $17,200; in 2003 the compensation to the officers was $19,600 and his adjusted gross income was $31,924; in 2004, the compensation to the officers of his corporation was $15,000.00; in 2004, his adjusted gross income was $27,839.

When they were separating, Mr. Leicht states he made a suggestion that they refinance the house for some money so he could get another house out east. He also stated he never wanted her to leave the house as she loves the house. At one point, in aggravation, he stated he told her he wanted to sell the house and take half. He did not remember discussing anything to do with his claimed equitable interest in her retirement accounts. As per conversation with Ms. Carretta, he stated that she told him that he deserves something, but never said an amount or percentage. He also testified that he does not have "much of a memory-have you figured that out yet," and stated that Ms. Carretta remembers everything-she always knows all the details. He stated he bought his Corvette for $5,000 cash but did not know where he got the money from to buy it. He thought he could have borrowed the money and if he borrows money, he always pays it back with funds from the business. He purchased his 1990 dump truck for $14,000 cash that was not in the bank but was accumulated, however, he did not know if he put it in the bank or stored the cash in the house. He purchased the 1988 Ford pickup for $7,000 cash. He obtained the GMC van by bartering by building a stone wall for someone, but did not remember who, and thought the value of the stone wall was $4,500.

Ms. Carretta testified that in 2006, her annual income from working with Hoffman, Grayson Architects was about $63,000 a year and she has been employed at Hoffman, Grayson [*8]Architects from 1983 to present. She began a 401K plan with John Hancock through Hoffman, Grayson Architects in 1996, and never maintained a 401K at any other employment. She testified that the current balance in the 401K is about $160,000.00 and there were no matching funds from her employer. In 1996 the contributing funds were under $100.00 per week and in 2000, she believed she began to add more money but did not know the amount, and in 2003 more money was put into the 401K as it was a catch up year allowing baby boomers to contribute more. She stated she discontinued contributing to the 401K in 2006 but did not know why. Mr. Leicht was named as the primary beneficiary and her children were the contingent beneficiaries, but she changed the beneficiary to her children after she and Mr. Leicht separated.

The plaintiff testified that he contributed to the 401K by matching the funds paid by the defendant into the account, but offered no testimony when he started doing so and offered no proof of the same. He stated that some of the money he paid her on a periodic basis was to pay toward household expenses and also helped defray the expense of putting money into her retirement account, $15.00 a week at first, then in a year he raised it to $50.00 a week. Ms. Carretta testified that she did not discuss with Mr. Leicht what contributions were going to be made into either the IRA or 401K with him. He stated that Ms. Carretta and he discussed his having an interest in her retirement account, but he did not remember the specifics and said the retirement account was started for their future. He stated she never told him how much of it was for him, but since he contributed half, he believed it was 50/50, however, he did not know how much he contributed to Ms. Carretta's retirement account.

Mr. Leicht stated he started, in his name, a TD Waterhouse brokerage account, got a few stocks including Coca Cola, for retirement and the future, and that half are Ms. Carretta's equitable share, but he did not give the value of same. Ms. Carretta stated she also participated in an IRA in 2000 through Fidelity, with the plaintiff listed as her beneficiary, and her children as contingent beneficiaries. She testified she changed the beneficiary to her children in 2006, and the IRA has a balance of about $5,000. This IRA is not subject to this action.

Ms. Carretta testified that she and Mr. Leicht had reciprocal Wills drafted about ten years prior to separating, leaving their assets to each other, since they were living together, and it seemed an appropriate course of action out of love and affection for him. In April 2004 she had her Will changed.

Based upon the testimonies of the parties, and the submissions in support of the motion and in opposition to said motion, it is determined that there is insufficient evidence to support the claim of actual or constructive fraud or a basis to impose a constructive trust with regard to the real property located at 102 Grandview Street, Huntington, or the 401K account, or to partition the real property or the 401K account.

The state of New York does not recognize the right to receive compensation based on an implied agreement to live together outside of a lawful marriage (Artache v Goldin, 133 AD2d 596 [2nd Dept 1987]). [*9]

"While cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law" (Marone v Marone, 50 NY2d 481 [1980]).

A constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest (Sharper v Harlem Teams for Self-Help, Inc., 257 AD2d 329 [1999]).

New York Courts have refused to imply an agreement based on non-marital relationships where no express agreement exists (Cannisi v Walsh et al, 2006 NY Slip Op 52075U, 13 Misc 3d 1231A [Kings County 2006], citing Morone v Morone, 50 NY2d 481 [1980]). While New York courts will not imply an agreement between unmarried domestic partners based on the nature of their relations, they have imposed constructive trusts on assets of a relationship of unmarried partners where the four elements needed to impose a constructive trust are established: the existence of a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and an unjust enrichment (Cannisi v Walsh et al, supra ). It was further set forth in Cannisi v Walsh et al, supra , that "[t]he Appellate Division Second Department, has held that an unmarried domestic partner may assert a cause of action for a constructive trust over property acquired during the relationship, to prevent unjust enrichment. Artache v Goldin, 133 AD2d 596 (2nd Dept 1987). That case involved a plaintiff who had cohabited with the defendant for 14 years and with whom she had four children, and who claimed a right to share of defendant's property based on an agreement during the relationship. The court held that plaintiff had the burden of proving that the claimed agreement was an express agreement, citing Morone v Morone, supra . However, the court upheld a separate cause of action in which plaintiff asserted a constructive trust over certain of defendant's assets, including the family residence." The Court continued, "In Lester v Zimmer,147 AD2d 340, 542 NYS2d 855 (3rd Dept 1989), the Third Department held that the third element of a constructive trust, a transfer in reliance of a promise, can be shown by contributions of funds, time, and effort, by a domestic partner in reliance on a promise to share the results of their joint efforts." The Court than set forth that "[h]ere, defendant has asserted that she made contributions of time and effort on behalf of the family unit in reliance on plaintiff's promise to contribute to the support of the family unit. She also asserts that the plaintiff would be unjustly enriched if those contributions are ignored and the proceeds of the partition are divided based on the financial contributions made toward the subject property. Assuming defendant's allegations to be true, she has articulated a colorable claim for a constructive trust on the proceeds of the sale of the subject property. The contributions of the parties to the relationship, both financial and otherwise, including plaintiff's retirement funds are relevant to defendant's claim."

In Lester v Zimmer, supra , the girlfriend met her burden of demonstrating a prima facie basis for imposition of a constructive trust by her supporting affidavits that indicated that she provided financial support to her former boyfriend during the construction of their home, contributed for the cost of material, and actually participated in building the house on the [*10]boyfriend's mother's land. The plaintiff, who was seeking a one half interest in the property, contended that the mother promised to give title to the house to them.

"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 into a trustee. Thus, a constructive trust is an equitable remedy. It is perhaps more different from an express trust than it is similar. The constructive trustee is not compelled to convey the property because he is a constructive trustee; it is because he can be compelled to convey it that he is a constructive trustee. A constructive trust will be erected whenever necessary to satisfy the demands of justice. Its applicability is limited only by the inventiveness of men who find new ways to enrich themselves unjustly by grasping what should not belong to them. Unjust enrichment does not require the performance of any wrongful act by the one enriched. Innocent parties may frequently be unjustly enriched. What is required, generally, is that a party hold property under such circumstances that in equity and good conscience he ought not to retain it. A bona fide purchaser of property upon which a constructive trust would otherwise be imposed takes free of the constructive trust, but a gratuitous donee, however, does not" (Simonds v Simonds, 45 NY2d 233 [1978]).

"A person may be deemed to be unjustly enriched if he (or she) has received a benefit, the retention of which would be unjust (Restatement, Restitution, §1, Comment a). A conclusion that one has been unjustly enriched is essentially a legal inference drawn from the circumstances surrounding the transfer of property and the relationship of the parties. It is a conclusion reached through the application of principles of equity" (Sharp v Kosmalski, 40 NY2d 119 [1976]).

Based upon the foregoing, it is determined that the defendant has demonstrated entitlement to summary judgment dismissing the complaint.

It is undisputed that a confidential relationship existed between the parties. A confidential relationship has been described as a "relation arising out of a close and intimate association which creates and inspires trust and confidence between the parties so associated" (Schwartz et al v Houss, 2005 NY Slip Op 50308U, 6 Misc 3d 1035A [Supreme Court of New York Kings County 2005]). It has not been demonstrated, however, that there was a promise, express or implied, to convey the real property at issue in part to Mr. Leicht, or to share the 401K with the plaintiff paid through the defendant's place of employment. Nor has it been demonstrated that the defendant was unjustly enriched.

Even though the parties lived together for twenty two years, the plaintiff has not demonstrated anything more than an implied agreement to share expenses and living arrangements. There has been no testimony or evidence in support of any claim by the plaintiff that he ever had, or was ever promised, a legal interest in the defendant's realty or the 401K account. [*11]

The parties never married, and when the defendant was ready to marry, the plaintiff had changed his mind. The parties never entered into a common law marriage in another state. Although they held a joint bank account, they filed separate income tax returns, and although all of the defendant's entire paycheck was deposited into that shared account, the plaintiff only contributed some of his income into their living arrangements and retained the remainder for himself. The plaintiff was compensated from his landscaping business approximately $6,000 a year to approximately $19,600 per year from his business pursuant to the corporate income tax returns filed by him. The defendant earned $63,000 per year through her job at the architectural firm. The defendant already owned a one half interest in the home as a result of her separation agreement from her former husband when the parties began living together, and she took a mortgage through her mother and father to purchase the remainder of the home from her former husband for $58,000 and a waiver of her maintenance payments of $100 per month. She paid the first mortgage and property taxes and insurance as her share of living expenses, and the plaintiff paid an equal amount toward the second mortgage, although not on a regular basis. The defendant ran the plaintiff's business for him by doing the bookkeeping and billing and worked without a salary for those twenty two years, as well as working at her full time job. The plaintiff utilized the real property at issue to run his business and store his equipment, rent free and with full use of the defendant's home telephone. The defendant did the cooking, laundry, cleaning and shopping, and the plaintiff maintained the outside premises and made repairs inside and out of the home. The costs of utilities were shared by the parties.

The parties did not execute any agreement specifying any changes that would occur in their respective rights to the property or 401K account, if any, in the event of a dissolution of their relationship. The plaintiff purchased stocks with an undisclosed value in his own name. Although the plaintiff asked the defendant to place his name on the deed to the real property, the defendant never did. Accordingly, there was no transfer of title to the real property.

As set forth in Tomkins v Jackson, 2008 NY Slip Op 51285U, 20 Misc 3d 1108A [Supreme Court New York County 2008]), "It may be argued that the plaintiff never owned or had a proprietary interest in the property, thus failing to meet the predicate for the imposition of a constructive trust (In re Zelnick, 273 AD2d 18 [4th Dept 1971] citing In re Wells' Will, 36 AD2d 471...[failure to establish grounds for imposition of a constructive trust where there was no evidence that claimant had an interest in the property at the time it was transferred]). Courts have held that a party may not impress a constructive trust on real property absent the relinquishment of some interest in the parcel in reliance on a promise to convey, and that this interest was parted with in reliance on the promise]; see also, Miller v Merrell, 53 NY2d 881 [1981] [defendant can be held a constructive trustee only if the law imposed upon him the obligation, regardless of intent, of acting in relation to the subject property for plaintiffs as well as himself, or in preference to himself]; Levy v Brush, 45 NY 589 [1871] [an oral agreement where one party agrees to purchase land, and pay from his own funds the necessary amount for that purpose for the joint benefit of both, the other to reimburse one half of the money so paid, cannot be enforced in equity; the oral agreement is not a partnership between the parties, and the party refusing to perform does not commit a fraud, as the contract is void, and there has been no [*12]part performance or parting with valuable consideration by the other]; Scivoletti v Marsala, 97 AD2d 201] [a constructive trust will be imposed where property is parted with on faith of an oral or implied promise to reconvey, "but none may be imposed by one who has no interest in the property prior to obtaining a promise that such interest will be given to him" error in imposing a constructive trust where there is no indication that the plaintiff ever had an prior interest in the house] affd. 61 NY2d 806 [Supreme Court Oneida County 1954."

"Fraud in law, is of two kinds, actual and constructive. The former arises from deception practiced by means of the misrepresentation or concealment of a material fact; the latter from a rule of public policy, or the confidential or fiduciary relation which one of the parties affected by the fraud sustained towards the other. It is a constituent of actual fraud that the party alleged to have been defrauded was deceived. No positive dishonesty of purpose is required to show constructive fraud" (Greenfield v Greenfield et al, 1953 NY Misc.1908, 123 NYS2d 19 [1953]). "In order to recover damages for constructive fraud, the following elements must be established: that (1) a representation was made, (2) the representation dealt with a material fact, (3) the representation was false, (4) the representation was made with the intent to make the other party rely upon it, (5) the other party did, in fact, rely on the representation without knowledge of its falsity, (6) injury resulted and (7) the parties are in a fiduciary or confidential relationship. However, unlike actual fraud, in order to recover damages for constructive fraud, the plaintiff need not prove actual knowledge of the falsity of the representation by the defendant" (Del Vecchio v Nassau County et al, 118 AD2d 615 [2nd Dept 1986]).

It is determined that there is no finding to support actual or constructive fraud concerning either the real property or the 401K account. It has not been demonstrated that a representation has been made by the defendant concerning either the real property or the 401 K account, nor does the plaintiff set forth how he relied upon any alleged representations, that the plaintiff would transfer an interest in the property or the 401K to him. The plaintiff lived with the defendant for twenty two years, sometimes contributing an amount to the second mortgage, and sharing other living expenses, plus running his business from the premises and having the defendant run his business without pay by keeping his books at his direction and doing his billing. He contributed only some of his income to their joint expenses. In that the plaintiff has not been able to set forth any representations made to him concerning the defendant promising or actually conveying an interest in the house and property and the 401K account, he cannot demonstrate that he relied upon such misrepresentations with knowledge of its falsity. While the defendant was contributing her entire income into the joint account, which income exceeded the plaintiff's reported income, the plaintiff was retaining cash and other monies for himself, purchasing multiple vehicles for use in his landscaping business and as collectors items, purchasing a camper and other fishing equipment and tools. The plaintiff has not demonstrated that he purchased an interest in the defendant's real property or the 401K account, but was simply sharing living expenses with the defendant. The plaintiff's mere expectation at this time is insufficient to establish entitlement to a constructive trust on the real property or the 401K account, or to partition the real property or the 401K account (see, Sylvester v Sbarra, 268 AD2d 424 (2nd Dept 2000); Liselli v Liselli, 263 AD2d 468 (2nd Dept 1999); Dutcher v Shaver, 40 [*13]AD3d 1192 [2007]).

Accordingly, motion (007) is granted and the complaint is dismissed.

Dated: March 4, 2009_____________________________________

Hon. Joseph C. Pastoressa