Kunkel v Kunkel

[*1] Kunkel v Kunkel 2011 NY Slip Op 51161(U) Decided on June 23, 2011 Supreme Court, Nassau County DeStefano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2011
Supreme Court, Nassau County

Michael Kunkel and Susan Kunkel, Plaintiffs,

against

Andrew Kunkel, Defendant



19166/08

 

Plaintiff's Attorney: Frank Racano, Esq. with Simonetti & Assoc., 144 Woodbury Road, Woodbury, NY 11797

Defendant's Attorney: William Swift, Esq. with Faber & Troy, 180 Froehlich Farm Boulevard, Woodbury, NY 11797

Vito M. DeStefano, J.

Factual and Procedural Background

In this action, inter alia, to impress a constructive trust on real property located at 49 Roosevelt Ct., Woodbury New York, the court (LeMarca, J.), in a decision and order dated March 30, 2009, granted, in part, Defendant's motion pursuant to CPLR 3211 (a)(7) to dismiss the Plaintiff's complaint. Specifically, the court dismissed all causes of action in the complaint, except for the first cause of action, which sought a constructive trust.

On March 24 and 25, 2011, this court conducted a trial on the constructive trust cause of action. Plaintiff Michael Kunkel presented his own testimony, and the testimony of Maurice Schneider, Robert Jordan, Andrea Hopkins, Richard Ruth and Frank Gaeta. The Defendant presented no testimony. [*2]

At trial, the witnesses testified to the following: Michael Kunkel ("Michael") is the son of Defendant Andrew Kunkel ("the father"); Michael resided at the subject premises for about 50 years, constituting most of his life; Michael had a close relationship with the father for many years; at the time of his first marriage in 1980, Michael planned on moving to Suffolk County and so informed his father; the father then offered to help him get a house in Suffolk County or alternatively the father could "turn upstairs into a house and in 15 years it would be [Michael's]"; in effect, the father offered to convert the upstairs floor of his "legal" one-family house, into an apartment where Michael and his (then) wife would live; as a result, Michael accepted the father's offer, which made more sense to him than buying a house in Suffolk County.

Before the house was converted, Michael lived there with his parents; Michael was grateful to the father for his offer to convert the house and discussed the alterations with him; after accepting the offer, construction began at premises in 1985 or 1986; the father applied for approval to convert house to a "mother daughter"; a declaration of restrictive covenants was issued by the Town of North Hempstead which permitted the father, mother, Michael and his wife to reside in the house for a two-year period, subject to further extensions that might be granted.

The father was financially successful and did not need additional income; Michael paid the father every month who informed him that he was paying "towards equity in the house"; there was no mortgage on the house and the father did not take any loans to convert it; the monthly amount paid by Michael was established by the father and was based on what Michael could afford; Michael's siblings and other relatives knew about his arrangement with the father; Michael did not try to purchase a house because he was relying on the father's promise to give him the house in 15 years; after Michael's divorce in 1987, Michael continued living at the house; he eventually remarried and told his new wife, plaintiff Susan Kunkel, that the house would be theirs in the future.

At some point, the father also remarried (to a woman named Sharon); problems between Michael and the father began when Sharon, who separated from the father for a while, returned about four years ago; the father and Michael then had a "falling out" after Michael's daughter moved into the upstairs apartment with her child following her own divorce; Michael continued paying the father, who never asked for rent; the father served eviction papers on Michael and complained of noise being made inside the apartment; as a result, Michael stopped paying the father and did not have any further conversation with him about the house; Michael never thought of moving out because of his prior agreement with the father; the father, Sharon, Michael and Susan all still live at the house.

Michael made monthly payments to the father long after the 15-year period ended; he "felt" that the house was going to be given to him in the father's will, although the father never mentioned anything to him in this regard; Michael believed that the money he gave to the father after the 15-year period was being "put on the side" for someone; Michael would have continued paying the father until he died; the payment amount to the father was initially $800 per month [*3]and was later raised by the father to $1,000 and then to $1,200; at no point was the house ever promised by the father to Susan Kunkel; the Plaintiff moved out of house for two years—there is no indication that he paid any monies to his father during this time period, although he did pay rent to the lessors from who he rented.

Michael testified that he made improvements to the house by installing a front door, replacing a condenser to the central air unit for the upstairs air conditioner, replacing floors and rugs, painting and doing tile work in the apartment; he installed an alarm system for his apartment; the improvements (as Michael called them) were primarily to the second floor, which he occupied.

Furthermore, although Michael stated that he was deprived of the ability to purchase a house because of his reliance on the father's promise to give him the house, in fact he purchased vacation homes in Pennsylvania and North Carolina (with his sister) to which he contributes, and time shares at the Atlantis Resort in the Bahamas and in Cabo San Lucas; Michael taught in the East Meadow School System for 24 years and is currently teaching at the Nassau County Correctional Facilities; three witnesses testified that at some point in the future the house would "go to" Michael; the Plaintiff's sister, Andrea, gave testimony regarding the promise made by the father to turn the house over to Michael after 15 years; she added that the father wasn't going to convert the house and start construction if Michael didn't accept; she heard the father say "if you pay $800 per month, the construction will be paid off and the house would be his"; somewhat inconsistently, she also testified that the father asked her "Do you have a problem with Michael inheriting the house".

Analysis

In Marini v Lombardo (79 AD3d 932 [2d Dept 2010]), the Second Department stated the following regarding the law of constructive trusts:

A constructive trust is an equitable remedy (see Simonds v Simonds, 45 NY2d 233, 241, 380 N.E.2d 189, 408 N.Y.S.2d 359) and its purpose is to prevent unjust enrichment (see Sharp v Kosmalski, 40 NY2d 119, 123, 351 N.E.2d 721, 386 N.Y.S.2d 72). In general, to impose a constructive trust, four factors must be established: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (id. at 121). However, as these elements serve only as a guideline, a constructive trust may still be imposed even if all of the elements are not established (see Simonds v Simonds, 45 NY2d at 241; see also Latham v Father Divine, 299 NY 22, 27, 85 N.E.2d 168).

At bar, Michael adduced sufficient proof to satisfy the first and second elements of a constructive trust, it being undisputed that he had a close relationship with the father and that the father promised to give him the house after 15 years (see In re Wieczorek, 186 AD2d 204 [2d Dept 1992]; Farano v Stephanelli, 7 AD2d 420 [1st Dept 1959]). That there was some minimally [*4]inconsistent testimony concerning the precise nature of the promise, to wit, whether the house would be turned over in 15 years or given through inheritance after the father's death, and, further, that evidence of Michael's continued payments does not tend to support the conclusion that the father promised to give him the house after 15 years, is not of particular importance. In this regard, the testimony was generally consistent and the inconsistencies may relate somewhat to the witnesses' lack of familiarity with legal terms and with the informality existing between family members. Moreover, that Michael made payments after the 15-year period ended and testified that he did so because he thought he would "get the house" after the father died does not alter the undisputed testimony regarding the father's original promise to Michael. As such, the court concludes that there was a confidential relationship between Michael and the father and a promise by the father to give the house to Michael after 15 years.

Regarding the third element of a constructive trust, courts have held that it "speaks to a transfer in reliance on a promise without qualif[ication] * * * 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" (see, e.g. Lester v Zimmer, 147 AD2d 340 [3d Dept 1989]) (emphasis in original). "Where * * * [the claimant] ha[s] no actual prior interest in this subject property, he [is] required to show that an equitable interest developed through the expenditure of money, labor, and time in the property" (see Marini v Lombardo, supra at 934). However, merely showing that funds were transferred or expended by the claimant does not necessarily satisfy the requirement of proving a transfer in reliance on a promise. In this regard, courts have rejected claimants' attempts to establish the "transfer" element based on their improvements to property inasmuch as the improvements also benefitted the claimants (see Marini v Lombardo, supra). Proof of payments being made by the claimants for operating expenses and real estate taxes have likewise been held insufficient given that such payments could be considered rent (see Marini v Lombardo, supra; Matter of Lefton [Bedell], 160 AD2d 702 [2d Dept 1990]; Onorato v Lupoli, 135 AD2d 693 [2d Dept 1987]).

At bar, therefore, the fact that the plaintiff made certain improvements to the portion of the house occupied by him, and from which he benefitted, and made monthly payments to the father, which could readily be considered rent, does not prove transfers in reliance on the promise to convey the house sufficient to satisfy the "transfer" element of the constructive trust.

In any event, the plaintiff failed to establish the fourth element of unjust enrichment, which requires a showing that "(1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" (Marini v Lombardo, supra at 934 quoting Citibank, N.A. v Walker, 12 AD3d 480, 481 [2d Dept 2004] [internal quotation marks omitted], abrogated on other grounds by Butler v Catinella, 58 AD3d 145 [2d Dept 2008]). Unjust enrichment occurs when in equity and good conscience a party obtains or possesses value that rightfully belongs to another party (Parsa v State of New York, 64 NY2d 143 [1984]).

Here, the father was not enriched by the improvements to the house or monthly payments [*5]made, all of which benefitted Michael (see Marini v Lombardo, supra at 934-35). Moreover, the court cannot conclude that it would be against equity and good conscience for the father to retain his interest in the house where he and Michael mutually benefitted from their arrangement and Michael was able to purchase vacation properties under, and possibly, as a result of, such an arrangement.

Accordingly, the court grants judgment to the father dismissing the complaint in its entirety.[FN1]

Dated: June 23, 2011

___________________________Hon. Vito M. DeStefano, J.S.C.

Footnotes

Footnote 1:The court notes that plaintiff Susan Kunkel established none of the elements necessary to impress a constructive trust.