Flint v. Shaiman

Appellate Division of the Supreme Court of New York

Flint v. Shaiman

108 A.D.2d 777, 485 N.Y.S.2d 111, 1985 N.Y. App. Div. LEXIS 43111

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 11, 1985

StatusPublished

Cited by2 cases

This text of 108 A.D.2d 777 (Flint v. Shaiman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flint v. Shaiman, 108 A.D.2d 777, 485 N.Y.S.2d 111, 1985 N.Y. App. Div. LEXIS 43111 (N.Y. Ct. App. 1985).

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Opinions

In an action, inter alia, to impress a constructive trust and for a declaration that the plaintiffs are the sole owners of a certain parcel of real property located in Suffolk County, plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated July 13,1983, which denied their motion for a new trial, and (2) a judgment of the same court, entered September 1,1983, which was in favor of the defendant and against them.

Appeal from the order dismissed (see, Matter of Aho, 39 NY2d 241, 248).

Judgment modified, on the law, by adding a provision declaring that the plaintiffs are not the sole owners of the premises in question. As so modified, judgment affirmed.

Respondent is awarded one bill of costs.

Upon a review of the record, we agree with the conclusion of Trial Term that plaintiffs have failed to sustain their burden of proving the requisite elements of a constructive trust (see, Sharp v Kosmalski, 40 NY2d 119, 121). Inasmuch as there was a failure of proof on their part, plaintiffs cannot prevail upon the [778]*778merits of this action. However, the rights of the parties should still have been declared by the trial court (see, Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901). Gibbons, J. P., O’Connor and Lawrence, JJ., concur.

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In an action, inter alia, to impress a constructive trust and for a declaration that the plaintiffs are the sole owners of a certain parcel of real property located in Suffolk County, plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated July 13,1983, which denied their motion for a new trial, and (2) a judgment of the same court, entered September 1,1983, which was in favor of the defendant and against them.

Appeal from the order dismissed (see, Matter of Aho, 39 NY2d 241, 248).

Judgment modified, on the law, by adding a provision declaring that the plaintiffs are not the sole owners of the premises in question. As so modified, judgment affirmed.

Respondent is awarded one bill of costs.

Upon a review of the record, we agree with the conclusion of Trial Term that plaintiffs have failed to sustain their burden of proving the requisite elements of a constructive trust (see, Sharp v Kosmalski, 40 NY2d 119, 121). Inasmuch as there was a failure of proof on their part, plaintiffs cannot prevail upon the [778]*778merits of this action. However, the rights of the parties should still have been declared by the trial court (see, Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901). Gibbons, J. P., O’Connor and Lawrence, JJ., concur.

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Bluebook (online)

108 A.D.2d 777, 485 N.Y.S.2d 111, 1985 N.Y. App. Div. LEXIS 43111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flint-v-shaiman-nyappdiv-1985.

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