Ellner v. Pope

285 A.D.2d 624, 728 N.Y.S.2d 672, 2001 N.Y. App. Div. LEXIS 7698

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 30, 2001
• Status: Published

Opinion

—In an action, inter alia, to impose a constructive trust on certain real property, the defendant Francis Pope, a/k/a Dave Pope, appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 3, 2001, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him and to vacate a notice of pendency filed against the subject real property.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, the action against the remaining defendants is severed, and the notice of pendency is vacated.

The appellant established his prima facie entitlement to judgment as a matter of law by presenting proof, inter alia, that there was no confidential and/or fiduciary relationship between him and the plaintiff. A confidential and/or fiduciary relationship is one of the four elements required to impose a constructive trust (see, Levy v Moran, 270 AD2d 314). Since the plaintiff failed to raise a triable issue of fact as to the existence of such a relationship, the appellant’s motion to dismiss the complaint and vacate the notice of pendency on the subject property should have been granted (cf., Crown Realty Co. v Crown Hgts. Jewish Community Council, 175 AD2d 151, see generally, Alvarez v Prospect Hosp., 68 NY2d 320).

In light of this determination, we need not reach the appellant’s remaining contentions. O’Brien, J. P., Florio, Feuerstein and Smith, JJ., concur.