Amato v Amato

[*1] Amato v Amato 2009 NY Slip Op 51465(U) [24 Misc 3d 1216(A)] Decided on July 10, 2009 Supreme Court, Kings County Thomas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2009
Supreme Court, Kings County

Benigno Amato and Giovanna Amato, Plaintiffs,

against

Camillo A. Amato and Maria C. Amato, Defendants.



27921/08



Attorney for the plaintiffs:

Anthony M. Bramante, Esq.

32 Court Street, Suite 902

Brooklyn, NY 11201

(718) 625-5525

Attorney for the defendants:

Caruso, Caruso, & Branda, P.C.

7302 13th Avenue

P.O. Box 280-086

Brooklyn, NY 11228-0003

(718) 680-5778

Delores J. Thomas, J.

Based upon the foregoing papers, plaintiffs Benigno Amato and Giovanna Amato move for an order: (1) dismissing the affirmative defenses and counterclaims asserted in the Verified Answer and Counterclaims of defendant Maria C. Amato; (2) granting summary judgment, pursuant to CPLR 3212, in their favor with respect to the instant partition action asserted by them as against defendants Camillo A. Amato, their son, and Maria C. Amato, their daughter-in-law; (3) issuing a judgment of partition in their favor with respect to the real property that is the subject of this action,1420 83rd Street, [*2]Brooklyn, New York, Block 6301, Lot 13;[FN1] (4) directing the sale forthwith of said premises; and (5) setting the instant action down for an inquest hearing for an accounting to determine the respective financial interest of each party in the proceeds of the sale. Defendant Maria C. Amato opposes the instant motion on the ground that questions of fact concerning her counterclaims for a constructive trust preclude the granting of summary judgment to plaintiffs or dismissal of the affirmative defenses and counterclaims. Defendant Camillo A. Amato does not oppose the instant motion.[FN2]

The plaintiffs' verified complaint pleads, in relevant part, the following:

FIRST: That the plaintiffs together with the defendants are seized and possessed in fee as tenants in common of undivided shares of all that certain piece or parcel of land [known as 1420 83rd Street, Brooklyn, New York, Block 6301, Lot 13].

* * *

SECOND: That the plaintiffs are seized as tenants in common in fee simple absolute of an undivided one-half interest of said premises by virtue of a deed dated July 31, 2001.

THIRD: That the defendants are seized as tenants in common in fee simple absolute of an undivided one-half interest of said premises by virtue of a deed dated July 31, 2001.

FOURTH: That the plaintiffs and the defendants are each of full age.

FIFTH: That the parties to this action own no other lands other than the said premises in common in the State of New York.

SIXTH: That the plaintiffs are entitled to a partition of the within premises and an accounting thereof.

WHEREFORE, plaintiffs demand judgment as follows:

A.That the plaintiffs herein . . . are seized and possessed as tenants in common in fee of an undivided one-half interest of the above described property herein known as and by [1428] 83rd Street, Brooklyn, New York, Block 6301, Lot 13;

B.That the defendants herein . . . are seized and possessed as tenant [sic] in [*3]common in fee of an undivided on-half [sic] of the said property . . .

C.That the said premises are so situated that a sale thereof is necessary, and that said premises be sold by and under the direction of the Court and conveyance given to the purchaser at said sale;

D.That out of moneys arising out of said sale that the plaintiffs be paid their costs of this action and of said sale;

E.That the residue of the money arising from said sale be divided and paid to the plaintiffs and defendants herein according to their respective shares;

F.That it be adjudged by said sale and conveyance pursuant thereto, that the plaintiffs and defendants and all persons claiming through or under them subsequent to the filing of the notice of pendency in this action, be barred from all right, title and interest in said premises in possession, reversion, remainder or otherwise;

G.That an accounting be had between the plaintiffs and the defendants, that upon the completion of said accounting that the defendants pay over to plaintiffs such sum or sums as ascertain [sic] due from said defendants;

H.That a Receiver be appointed with the usual powers and directions, of all rents and profits now due and unpaid or to become due pending this action, and arising out of the premises mentioned in the complaint.

The verified answer of co-defendant Maria C. Amato, pleads, in relevant part, the following affirmative defenses and counter-claim:

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

That the Plaintiffs' actions are barred by the doctrine of "unclean hands."

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

That the equities are balanced in favor of the Defendants.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

Plaintiffs' claim of ownership interest in and to the real property known as 1420 83rd Street, Brooklyn, New York, is illusory, in that Plaintiffs took title to the premises with Defendants, solely for the purpose of obtaining a collaterized security interest in said property, to the extent that it secured the repayment of a $100,000.00 loan, made by Plaintiffs to the Defendants to aid and assist the Defendants in purchasing said premises.

Plaintiffs claim an interest in and to 1420 83rd Street, Brooklyn, New York, is solely [*4]as a secured creditor, securing the repayment of a debt incurred by the Defendants in or about July 2001, in favor of Plaintiffs, in the original sum of $100,000.00.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE ANDFIRST COUNTERCLAIM

***

That this action is brought pursuant to Article 15 of the Real Property Actions and Proceeding Law of the State of New York, to compel the determination of claims to the real property hereinafter described.

In or about March 2001, Defendants became interested in purchasing a house at the premises situated at 1420 83rd Street, Brooklyn, New York.

As Defendants possessed limited financial resources, the Plaintiffs offered to give $100,000.00 towards the purchase of a house.

That the plaintiffs unjustly claim, and it appears from the public records that they may claim, an estate or interest in the above described premises along with the Defendants.

The fact is, however, that the estate and interest claimed, or which may be claimed in said premises, by the Plaintiffs is invalid and ineffective as against the estate and interest of the Defendants in said premises hereinbefore set forth, in that the Defendants permitted Plaintiffs to take title to said premises as a matter of convenience only, for the purpose of placing a larger down payment in order to reduce the monthly mortgage payments.

At no time did Defendants consider Plaintiffs as having genuine ownership interest in the property and in reliance upon Plaintiffs' promise to lend them $100,000.00, Defendants permitted Plaintiffs'name to be included on the deed with the clear understanding between all parties that Plaintiffs' interest in the property was held solely for Defendants' benefit.

Defendants would never have permitted Plaintiffs to join in the purchase of the said premises had the Plaintiffs acknowledged that they expected to obtain an equitable ownership in the property.

Plaintiffs' ownership interest in the property is merely illusory and Plaintiff took title solely for the benefit of the Defendants.

From the date of purchase up to the present, Defendants have exercised complete dominion and control over the property and, acting in a manner consistent with being the sole and absolute owner, have paid for all costs and expenses related to the financing, care, [*5]upkeep and maintenance of the property.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE AND

AND SECOND COUNTERCLAIM

***

Those [sic] at all times prior to and on or about July 2001, a close and confidential relationship existed between Plaintiffs . . . and the Defendants . . . .

That . . . on or before July 2001, the Plaintiffs made [,] expressed and/or implied promises that the title to the subject property would be held in such a manner as would be for the benefit of the Defendants, which the Defendants relied upon.

That the Plaintiffs did breach their promise to hold said property in trust for the Defendants by commencing this partition action.

That the Plaintiffs would be unjustly enriched if they were permitted to bring and recover from this partition action upon the breach of their promise and the relationship between the Plaintiffs and Defendants.

WHEREFORE, the Co-Defendant Maria Amato, demands judgment against the Plaintiffs:

Dismissing Plaintiffs' Complaint in its entirety together with costs, disbursements and expenses of this action; and/or

Impressing a [C]onstructive Trust against the subject premises for the benefit of the Defendants; and/or

Declaring the Defendants as the sole and exclusive title owner of the subject property; and/or

That the Plaintiffs and every person claiming under them be barred from all claims to an estate or interest in the subject premises . . .

(Original paragraph numbering omitted).

In support of the instant motion, plaintiffs submit the affidavit of Benigno Amato, which states, in relevant part, the following with respect to the parties' alleged ownership interest in the subject property:

We [the Plaintiffs and Defendants] purchased the premise[s] in or about July of 2001. Towards this purchase, my wife and I advanced the sum [of] $100,000.00 for a 50% interest [*6]in the premises. The premise[s] was to be the residence of our son and daughter-in-law (citation to exhibit omitted). We allowed my son and daughter-in-law to collect . . . rents and manage the property with the understanding that in the event of a sale of the premise[s] that there would be a sharing of any profits in regards to the property.

***

There was never a promise to hold the property in trust for my son and daughter-in-law nor did we purchase this property merely as an accommodation or convenience. The intent was always to obtain and retain a one-half interest in the property. Clearly, our hope was that our son and daughter-in-law (and their children) would reside together as a family in that residence for a very long tine. However, the Defendant Maria C. Amato has commenced an action for divorce, obviously breaking up her family.

Our hope that our son, daughter-in-law and their family would reside in this house for an extended period of time is obviously not going to come to pass. Accordingly, by the partition action we are re-affirming our ownership interest in the Property and wish to take back our 50% interest in the premises.

As stated in both our loan application and that of our son and daughter-in-law (citation to exhibit omitted), the property was to be owned by all of us. The arrangement was re-affirmed by documents executed at the closing by all of us. (Emphasis in original). Attached is a copy of the CERTIFICATION where we all signed that we did not omit any pertinent information or made [sic] a misrepresentation in the mortgage application. Our interest was and remains the same - that, we (my wife and I) were to have a one-half interest in the property. This intent was further acknowledged by our daughter-in-law in her deposition during the pending divorce action with our son.

The mortgage . . . again reaffirms the truthfulness of the mortgage application. Since we disclosed and represented in the mortgage application that we [would] not be living in the subject house - and the mortgage was granted on that basis, all of our disclosures were and remain truthful.

We never agreed or said we would agree to hold our interest in trust or have our ownership interest be treated as illusory as our daughter-in-law claims.

***

The simple fact is that we put $100,000.00 into the purchase of the home in order to have a half interest in the house that our son and daughter-in-law and his family would reside in. [*7]

(Original paragraph numbering omitted).

In further support of their motion, the plaintiffs submit, inter alia, the following documentary evidence:

(1) A copy of the bargain and sale deed and the contract of sale for the subject premises containing the names of both plaintiffs and defendants as owners/buyers of the property; (2) mortgage applications completed by both plaintiffs and defendants with respect to the property and (3) deposition testimony of defendant Maria C. Amato in the related divorce action. Said deposition testimony avers, in relevant part, the following:

Q.By the way, who owns your house, the house you live in?

A.Me and Camillo and his parents.

Q.And, his parents, to your knowledge, own half the house?

A.Yes.

Q.Did they, to your knowledge, give any money for the down payment for that house?

A.$100,000.00.

Q.And, was there an agreement between you and his parents when you purchased the house?

A.What do you mean? What agreement? They gave us $100,000.00.

Q.They were purchasing half themselves, correct?

A.Yes.

Q.It wasn't a gift?

A.That's what they said to me at the time, that it was a gift.

Q.It was a gift?

A.Yes.

Q.To you? [*8]

A.Not to me, to us. To help us, so the mortgage would be lower and that's why I agreed.

Q.That's why you agreed to take $100,000?

A.Yes, so the mortgage could be lower. Wouldn't you agree?

Q.Well, how come you allowed their names to go on the deed to your house?

A.I wasn't. I was fighting that.

Q.To your knowledge, they wanted their names on the deed?

A.Yes. Now I know why.

In opposition to the instant motion of plaintiffs, defendant submits an affidavit, which describes, in relevant part, the circumstances surrounding the purchase of the premises in question and the alleged factual issues presented by same, as follows:

Specifically, the material issues of act include: whether the plaintiffs are in fact true equitable owners of the property; whether the money [plaintiffs] provided to [myself] and my husband was simply collateral by placing their name on the deed; and whether a constructive trust should be impressed on the property.

To give this Court some insight into the purchase of the property in question, in or about April 2001, [myself] and my husband decided to purchase a new home, as we were residing in a small apartment and I had just given birth to our first child. We hired a real estate broker, who showed us several different properties in the Bensonhurst neighborhood. After . . . my husband [and I] looked at numerous properties, we decided to purchase the property [at] 1420 83rd Street, Brooklyn, New York. After some of the initial paperwork had been drawn up, my husband informed me that we were having difficulty obtaining a mortgage on our own. When [we] realized that we would need help in qualifying to obtain a mortgage for the property, the Plaintiffs offered their assistance by providing us with $100,000.00 to use towards the purchase of the property, so that we could secure a smaller mortgage. As you can see from the Contract of Sale, unlike [my name] and my husband's name which are typed on the document, the Plaintiffs' names are handwritten. The reason for this discrepancy is that it was only after my husband learned that we would need help securing the mortgage that the Plaintiffs appeared in the transaction. There is absolutely no dispute that the Plaintiffs did in fact provide [myself] and my husband the money to help purchase the property. What is in dispute, however, is the Plaintiffs['] true purpose and intent when they gave us said money.

Despite the claims made in the Plaintiffs['] [instant] motion . . ., at no point, during [*9]the purchase of the property, was [I] made to think that the money provided was to be considered anything but a loan from the Plaintiffs to [myself] and my husband. When my husband stated to me that the Plaintiffs' names would also be appearing on the deed, I questioned both him and our real estate attorney . . . about the need to place the Plaintiffs['] names on the deed. My husband and in-laws assured me that despite how title was to be held, [myself] and my husband were the true equitable owners of the property. If I was told, during this transaction, that the Plaintiffs expected to obtain and retain any true ownership interest in said residence, [I] would never have permitted Plaintiffs[ ] to join in the purchase of the marital residence.

When [I] was further questioned about the marital residence, by my husband's attorney . . . during [my] deposition for the [related] matrimonial action, I stated . . . that when the Plaintiffs' provided us the money it was intended to help us so that the mortgage payments would be lowered. (Citation to exhibit omitted.) The Plaintiffs claim . . . that they never agreed to hold their interest in trust . . . . However, during the transaction to purchase the property, there was an implied promise that the money they provided to us was simply to help with the mortgage and that the only reason they were placed on the deed was to collateralize that money. It was because of the close relationship I had with my in-laws at the time and their implied promise to me, that I ultimately agreed to allow their names to be placed on the deed. I never could have imagined that during this period of time my in-laws were in fact deceiving me and that seven years later I would be forced to defend myself in a partition action against them.

This Court should further note that since the purchase of the property, the Plaintiffs have never acted as true owners of the property and have done nothing with respect to the property. It has been [myself] and my husband alone who have exercised complete dominion and control over the marital residence and have held ourselves out to be the sole equitable owners of the residence. This is documented when we refinanced the residence with RBC Mortgage Company and my husband stated in the application that we were 100% owners of the residence. Moreover, it has only been [myself], my husband and our two children who have resided in said residence. [Myself] and my husband, alone, have paid for the monthly mortgage payments, the real estate taxes, homeowners' insurance, utilities, any and all carrying charges associated with the marital residence, necessary repairs (including installing a new boiler in the house in the winter of 2006 and new windows in the residence) and improvements in the marital residence, without any financial assistance from the Plaintiffs. Additionally, [myself] and my husband have collected and used 100% of the rental income, which is generated from the apartment in the marital residence. It has been [myself] and my husband who alone have taken all of the real estate deductions and who have reported all of the rental income on our tax returns, since 2001 (Citation to exhibit omitted). It is quite apparent that by simply looking at the Plaintiffs' conduct since the purchase of the property, [*10]it corroborates my claim that they were never true owners of the residence and that the Plaintiffs' ownership interest in the property is completely illusory. As stated previously, the only reason that their names do in fact appear on the deed is simply to collateralize the money they provided us.

Regardless of how title is held for the property, said residence was always to benefit [myself], my husband and our two children. Contrary to the[ir] assertion . . . , the Plaintiffs never "allowed us to collect the rents and manage the property because of an understanding that in the event of a sale of the residence, there would be a sharing of the profits." Rather, [myself] and my husband collected the rents and managed the property because of the understanding that the Plaintiffs were not to be considered actual owners of the property and that despite the monies they advanced to us, they were not to retain any ownership interest in the property. If the Plaintiffs' true intent was to obtain and retain an ownership interest in the residence, the Plaintiffs would not have absolved themselves of any actions that would have shown that they were in fact equity owners of the property.

Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law (Prince v Di Benedetto, 189 AD2d 757, 759 [1993]; Zarr v Riccio, 180 AD2d 734, 735 [1992]). Once the movant has established his or her prima facie case, the party opposing a motion for summary judgment bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Romano v St. Vincent's Med. Ctr. of Richmond, 178 AD2d 467, 470 [1991]; Tessier v New York City Health & Hosp. Corp., 177 AD2d 626 [1991]). Stated differently, "the plaintiff must establish the existence of material facts of sufficient import to create a triable issue" (Shaw v Time-Life Records, 38 NY2d 201, 207 [1975]). In addition, the evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Since summary judgment deprives a party of his or her day in court (Henderson v City of New York, 178 AD2d 129 [1991]), it is a drastic remedy that will only be awarded when there is no triable issue of fact and the court can render a decision as a matter of law (Barclay v Denckla, 182 AD2d 658 [1992]). Accordingly, "[i]f there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547, 547 [1995]).

Here, the plaintiffs have established, prima facie, an ownership right in the subject property pursuant to the contract of sale, deed and mortgage documents submitted in support of the instant summary judgment motion. The court finds, however, that material issues of [*11]fact exist with respect to defendant's counterclaim for constructive trust which preclude not only the dismissal of said counterclaim and the affirmative defenses asserted by her, but also support denial of the plaintiffs' motion for summary judgment on their action for partition and sale. It is well settled that "[i]n the development of the doctrine of constructive trust as a remedy available to courts of equity, the following four requirements were posited: (1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment" (Sharp v Kosmalski, 40 NY2d 119, 121 [1976]). "However, the four factors are not an unyielding formula which limits a court's freedom to fashion this equitable remedy' and the requirements are not to be rigidly applied" (Byrd v Brown, 208 AD2d 582, 583 [1994], quoting Bontecou v Goldman, 103 AD2d 732, 733 [1984]). This comports with the well established principle that a constructive trust "is available to prevent unjust enrichment in a wide range of circumstances" (Lipton v Donnenfeld, 5 AD3d 356, 358 [2004], lv denied 2 NY3d 707 [2004]). Accordingly, the imposition of a constructive trust has been deemed an appropriate remedy where it appears that property has been acquired under such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest of same (see Kowalski, 40 NY2d at 121). "Although the constructive trust doctrine is not rigidly limited' (Simonds v Simonds, 45 NY2d 233, 241 [1978], the promissory element . . . is essential to the proof of such a trust'" (Bankers Sec. Life Ins. Socy. v Shakerdge, 49 NY2d 939, 940 [1980]; Whalen v Harvey, 235 AD2d 792, 794 [1997], lv denied 89 NY2d 816 [1997]).

The flexibility of the constructive trust doctrine, however, allows for the imposition of same where the requisite promise is merely implied, such as in cases where the basis for the remedy resides largely within the nature of the confidential relationship itself or the transaction complained of, even in the absence of an explicit promise with respect to the disposition of the subject property (see Sharp, 40 NY2d at 122 [noting that "(e)ven without an express promise . . . courts of equity have imposed a constructive trust upon property transferred in reliance upon a confidential relationship (finding that) (i)n such a situation, a promise may be implied or inferred from the very transaction itself"]; Reiner v Reiner, 100 AD2d 872, 874 [1984][finding that an implied promise could be inferred from the relationship of the parties to the initial transaction - a married couple and the husband's parents - as well as the nature of such transaction where the husband's parents were listed as co-owners on the deed to the subject property and made mortgage payments for the purpose of certain tax advantages for which they were reimbursed by their son and his wife]).

In the marital context, a constructive trust has been specifically recognized "as a remedy for a [spouse's] effort to place marital property out of [the other spouse's] reach" (Elkaim v Elkaim, 176 AD2d 116, 119 [1991], lv dismissed 78 NY2d 1072 [1991]). Indeed, the constructive trust doctrine has been deemed particularly relevant "when family transactions are involved" (Simonds, 45 NY2d at 243). The court is mindful, however, that a constructive trust is meant to be utilized as a "fraud-rectifying" as opposed to an "intent-enforcing" remedy (see Wilcox v Wilcox, 233 AD2d 565, 566 [1996]; see also Bankers Sec. [*12]Life Ins. Socy.,49 NY2d at 940; Rossignol v Silvernail, 222 AD2d 939, 940 [1995]).

Limitations on the constructive trust doctrine generally concern the "unjust enrichment" element of same. For instance, "if a constructive trust is otherwise appropriate, it will be imposed unless the party who received the property is a bona fide purchaser, i.e. one who took without notice that it had been wrongfully obtained" (Majer v Schmidt, 169 AD2d 501, 503 [1991]; Hazlett v Fusco, 177 AD2d 813, 815 [1991]; see generally also Smith v Driscoll, 69 AD2d 857, 857 [1979]; Bronowski v Magnus Enterprises, Inc., 61 AD2d 879, 880 [1978]). In addition, as an equitable remedy, the imposition of a constructive trust is not available to a plaintiff where evidence exists that he or she has "unclean hands" - i.e., one may not obtain equitable relief where he or she has engaged in inequitable conduct connected with the matter in litigation (see Cohn & Berk v Rothman-Goodman Mgt. Corp., 125 AD2d 435, 436 [1986]; see also Columbo v Columbo, 50 AD3d 617, 619 [2008]; Fade v Pugliani/Fade, 8 AD3d 612, 614 [2004]).

Given the flexible and equitable nature of the constructive trust remedy, courts have generally liberally construed the "transfer" element of the traditional constructive trust cause of action. As stated by the court in Lester v Zimmer, (147 AD2d 340, 342 [1989][citations omitted),

We recognize that the case law cited by defendants holds that a party may not impress a constructive trust . . . absent the relinquishment of some interest in the [subject property] in reliance on a promise to convey . . . . The law of constructive trusts, however, is not confined to reconveyance situations. The third element necessary to impress a constructive trust speaks to a transfer in reliance on a promise without qualifying the underscored term. In our view, the transfer concept extends to instances . . . where funds, time and effort are contributed in reliance on a promise to share in the result.In so holding, the court also "recognized that a constructive trust may be imposed in the marital context where the proponent has extended funds or effort in reliance on a promise" id. at 342).

Since the Lester v Zimmer decision, other courts have similarly determined that the transfer element can be satisfied by a showing that the party seeking the imposition of a constructive trust expended monies, time or effort with respect to the property in question in reliance upon a promise that he or she held an interest, either present or future, in said property. In the recent case Panish v Panish (8 Misc 3d 1001, *1[A][2005]), the trial court found that plaintiff daughter-in-law had sufficiently pled a cause of action for the imposition of a constructive trust where she alleged that, although title to the subject property was placed in her father-in-law's name in order to protect such property from her husband's creditor, marital funds had been used to purchase the property and she expended her own monies toward improvements to the property based upon an agreement that she would eventually obtain legal title to same. In so holding, the court stated that "plaintiff's allegations regarding the contribution of money toward the purchase and renovation of the home are sufficient to satisfy the transfer in reliance element" and further noted that "[w]hile [*13]the defendant [father-in-law] sharply disputes the plaintiff's claims, the allegations in the complaint, which must be accepted as true on a motion to dismiss . . . are sufficient to state a cause of action for a constructive trust" (id. [citations omitted]). The Appellate Division, Second Department affirmed the trial court's determination that plaintiff had sufficiently alleged the elements of a cause of action to impose a constructive trust (Panish v Panish, 24 AD3d 642, 643 [2005]).

Additional cases have reached similar conclusions with respect to the assertion by plaintiff that his or her expenditure of money, time and effort constituted the requisite "transfer in reliance" to state a claim for a constructive trust (see Moak v Raynor, 28 AD3d 900, 902 [2006][recognizing that "courts have extended the transfer element to include instances where funds, time and effort were contributed in reliance on a promise to share in some interest in property, even though no transfer actually occurred"]; Matter of Bayside Controls, Inc. v Telyas, 295 AD2d 343, 344-346 [2002]["transfer in reliance" element satisfied by plaintiff's allegations that he contributed his time, money and energy into the operation of the subject business in reliance on defendant's representation that although, "for the purpose of administrative simplicity," defendant would hold plaintiff's shares of stock in trust, plaintiff nonetheless owned 50% of the business]; Gottlieb v Gottlieb, 166 AD2d 413, 414 [1990][contribution toward purchase and improvement of subject property sufficient to fulfill "transfer in reliance" element]; Mendel v Hewitt, 161 AD2d 849, 850-851 [1990][plaintiff's contribution of funds toward the purchase and improvement of property to which he had never held an interest deemed sufficient to fulfill "transfer in reliance" element]; Washington v Defense, 149 AD2d 697, 698 [1989], lv denied 74 NY2d 609 [1989][interest in property for "transfer in reliance" purposes fulfilled where plaintiff expended money, labor and time in improving the subject property even though she never had actual title to same]).

Similar to the constructive trust doctrine, partition also constitutes an equitable remedy. "It is well settled that, as a general principle, one who holds an interest in real property as a tenant in common may seek physical partition of the property, or, a partition and sale thereof [if] it appears that physical partition alone would greatly prejudice the owners of the premises" (Bufogle v Greek, 152 AD2d 527, 528 [1989]). However, it is well settled that "[t]he equitable remedy of partition is not the absolute right of a cotenant in common" (Stressler v Stressler, 193 AD2d 728, 728 [1993]). Indeed, it has been "specifically recognized that with respect to a former marital residence, the right to maintain an action for partition is subject to equitable considerations as between husband and wife and, accordingly, partition may be precluded by the equities presented in a given case" (id. [internal quotation marks and citations omitted][affirming dismissal of partition action where the court determined that "[s]ince the parties' unemancipated son, who is under the age of 21 years, still resides in the subject residence . . . at the present time the equities favor dismissal of the former husband's partition action"]). Given the equitable nature of such remedy, the court must consider the respective interests of the parties involved and whether partition may [*14]be had without great prejudice prior to granting a partition and/or sale of the property (see RPAPL 901[1]; Bentley v Dox, 12 AD3d 1187, 1187 [2004]; see also James v James, 52 AD3d 474, 474-475 [2008][noting that the right of a tenant in common pursuant to RPAPL 901 to maintain an action for partition is subject to the equities of the parties]).

The issues of fact present in this case largely emanate from defendant's allegations that she and her husband expended significant marital funds toward the property based upon their understanding that the property solely belonged to them, the $100,000.00 from plaintiffs was merely a gift or loan and the premises was at all times to be used as the marital residence and familial home for their children. The gravamen of defendant's opposition to the instant motion to dismiss and for summary judgment is that, although the parties all obtained an interest in the property "on paper", so to speak, as per the deed, contract of sale and mortgage documents, defendant and her husband proceeded to treat the property as if it were entirely their own based upon either the express or implied promise of plaintiffs that the $100,000.00 they provided for a down payment was either a gift or loan, plaintiffs would not exercise any actual ownership interest in the property and said property would, in effect, ultimately be wholly owned by defendant and her husband. Accordingly, defendant contends that plaintiffs would be unjustly enriched if they were allowed to compel a sale of the premises and receive a potentially significant portion of the proceeds generated by same.

In support of such contentions, defendant avers, without any refutation from plaintiffs, that she and her husband also contributed to the down payment for the property, have paid all carrying charges for same, including mortgage payments, taxes and utilities, as well as all maintenance and repair expenses, commencing when they moved in after the closing and continuing throughout the approximately eight years during which they have resided at the subject premises. Defendant and her husband also acted, at all relevant times, as landlords with respect to the tenant who resides at the subject premises, including the collection of rent. Defendant and her husband have received all tax benefits associated with ownership of the property and have declared the rental payments as income. Plaintiffs themselves concede that they envisioned the property as the parties' marital residence and a home for their grandchildren. However, they deny that a promise was ever made by them to defendants that the subject $100,000.00 was merely as a gift or loan and they did not intend to ever exercise any ownership interest in the premises.

Both partition and constructive trust are remedies which compel the court to weigh the equities of the parties and fashion a resolution of the matter which achieves a fair distribution of the property in question, particularly where close familial relations, alleged implied or explicit promises made in the context of same and the reliance of defendant thereupon are at issue. Here, questions of intent, credibility and the parties' various contributions to, and connections with, the property necessitate further discovery and the denial of the summary resolution sought by plaintiffs. This is particularly true where, as here, a marital relationship is involved, a divorce action is currently pending between the married parties, and the parties' two unemancipated children currently reside at the subject [*15]property. The divorce case and the instant case have been consolidated, inter alia, due to the overlap of issues between them with respect to the potential distribution of the marital residence. Although the defendant's husband is not seeking the partition at issue, but rather his parents are, the court must nonetheless consider the equities of the parties, taking into account the nature of the marital relationship involved, where, as here, potentially colorable claims of constructive trust are alleged and interwoven confidential relationships exist, as do questions concerning any promises, agreements, understandings or reliance thereupon stemming from same. Accordingly, the court finds that such questions of fact, credibility and weighing of the ultimate equities, including the potential for unjust enrichment, must await resolution at trial.

As a result, the instant motion of plaintiffs to dismiss and for summary judgment and related relief is denied in its entirely. The parties shall appear in Part 5T for a status conference on July 14, 2009.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Although the property is referred to repeatedly by plaintiffs as 1428 83rd Street, all relevant documents produced identify the property as being located at 1420 83rd Street.

Footnote 2: Given said lack of opposition on the part of Camillo A. Amato, the term "defendant", when used in the singular herein, shall always refer to Maria C. Amato.