Farr v Covert

Farr v Covert 2006 NY Slip Op 08371 [34 AD3d 1204] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Harry Farr, Appellant, v Michael J. Covert, Respondent, et al., Defendants.

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Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered July 1, 2005. The judgment, insofar as appealed from, dismissed the complaint after a nonjury trial.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia, to impose an equitable lien on a parcel of real property. Plaintiff contends that Supreme Court erred in dismissing the complaint, after a nonjury trial, on the ground that plaintiff failed to meet all of the requirements for the imposition of an equitable lien. We disagree. "An equitable lien may be imposed on property where one in a confidential relationship with the owner has expended money for improvement of the property based on a promise to convey, reimburse or grant a lesser interest in the property" (Johnston v Martin, 183 AD2d 1019, 1020 [1992]; see Leary v Corvin, 181 NY 222, 229-230 [1905]; Shanley v Crisafulli, 292 AD2d 827 [2002]; Petrukevich v Maksimovich, 1 AD2d 786 [1956]). Plaintiff failed to demonstrate the existence of an express or implied promise to convey any interest in the subject parcel to him or to reimburse him for improvements to the subject parcel. The subjective expectation of plaintiff that an interest in the property would be conveyed to him, however sincere, is insufficient to establish an equitable lien (see Scivoletti v Marsala, 61 NY2d 806, 808-809 [1984]; Lester v Zimmer, 197 AD2d 783, 784 [1993]). Thus, the court properly dismissed the complaint.

Plaintiff's remaining contention concerns dicta in the court's decision that was not necessary to the court's resolution of the issues raised at trial (see Dow v Niagara Sq. Assoc., 190 AD2d 1016 [1993], lv denied 83 NY2d 753 [1994]; see generally Matter of Khatib v Liverpool Cent. School Dist., 244 AD2d 957 [1997]; Schuster v Schweitzer, 203 AD2d 552 [1994]). Present—Gorski, J.P., Martoche, Smith and Pine, JJ.