Matter of Perricone
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Matter of Perricone
2026 NY Slip Op 04507
July 22, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
In the Matter of Anthony Perricone, deceased. Carrieann Perricone, etc., respondent; Alexandra Perricone, appellant. (File No. 1260/20)
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 22, 2026
2024-02787
Francesca E. Connolly, J.P.
Valerie Brathwaite Nelson
Barry E. Warhit
Elena Goldberg Velazquez, JJ.
Levine Haddad & Gregory, P.C., New York, NY (Peter Nichols of counsel), for appellant.
Lorenzo DeLuca, Staten Island, NY, for respondent.
DECISION & ORDER
In a proceeding, inter alia, to impose a constructive trust, Alexandra Perricone appeals from an order of the Surrogate's Court, Richmond County (Matthew J. Titone, S.), dated February 16, 2024. The order, insofar as appealed from, granted that branch of the petitioner's motion which was, in effect, to impose a constructive trust on the retirement accounts of the decedent Anthony Perricone and denied the cross-motion of Alexandra Perricone, in effect, for leave to reargue her opposition to that branch of the petitioner's prior motion which was for leave to renew her petition, among other things, to impose a constructive trust on the retirement accounts of the decedent Anthony Perricone, which branch of the prior motion had been granted in an order of the same court dated May 10, 2022.
ORDERED that the appeal from so much of the order as denied the cross-motion of Alexandra Perricone, in effect, for leave to reargue her opposition to that branch of the petitioner's prior motion which was for leave to renew her petition, inter alia, to impose a constructive trust on the retirement accounts of the decedent Anthony Perricone is dismissed; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the petitioner.
The underlying facts and procedural history are summarized in this Court's decision and order on a related appeal (see Matter of Perricone, ____ AD3d ____ [Appellate Division Docket No. 2022-04444; decided herewith]).
As is relevant to this appeal, in September 2023, the petitioner moved, among other things, in effect, to impose a constructive trust on the retirement accounts of the decedent Anthony Perricone (hereinafter the decedent). Alexandra Perricone (hereinafter Alexandra) cross-moved, in effect, for leave to reargue her opposition to that branch of the petitioner's prior motion which was for leave to renew her petition, inter alia, to impose a constructive trust on the decedent's retirement accounts. In an order dated February 16, 2024, the Surrogate's Court, among other things, granted that branch of the petitioner's motion and denied Alexandra's cross-motion. Alexandra appeals.
The appeal from so much of the order as denied Alexandra's cross-motion, in effect, for leave to reargue must be dismissed, as no appeal lies from an order denying reargument (see Orangetown Police Dept. v Cashell, 238 AD3d 1152, 1153).
"Generally, a constructive trust may be imposed [w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest" (Sharp v Kosmalski, 40 NY2d 119, 121 [internal quotation marks omitted]). "The usual elements of a constructive trust are (1) a confidential or fiduciary relation[ship], (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment" (Matter of Harold, 112 AD3d 929, 931 [internal quotation marks omitted]). "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" (Keane v Keane, 193 AD3d 838, 839 [internal quotation marks omitted]; see Simonds v Simonds, 45 NY2d 233, 241). A constructive trust "will be erected whenever necessary to satisfy the demands of justice" (Latham v Father Divine, 299 NY 22, 27; see Matter of Harold, 112 AD3d at 931).
Here, the Surrogate's Court properly granted that branch of the petitioner's motion which was, in effect, to impose a constructive trust on the decedent's retirement accounts (see Van de Walle v Van de Walle, 200 AD3d 1095, 1099). The petitioner established that the decedent breached a stipulation of settlement by failing to maintain a life insurance policy for the benefit of the child of the decedent and the petitioner and that the decedent's retirement accounts should be considered part of the decedent's estate, which was otherwise insolvent (see Matter of Granwell, 20 NY2d 91, 97; Van de Walle v Van de Walle, 200 AD3d at 1099-1100). Under the circumstances of this case, the imposition of a constructive trust was warranted (see Van de Walle v Van de Walle, 200 AD3d at 1099).
Alexandra's remaining contentions are either not properly before this Court or without merit.
CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.
2024-02787 DECISION & ORDER ON MOTION
In the Matter of Anthony Perricone, deceased.
Carrieann Perricone, etc., respondent;
Alexandra Perricone, appellant.
(File No. 1260/20)
Appeal from an order of the Surrogate's Court, Richmond County, dated February 16, 2024. Motion by Carrieann Perricone to strike stated portions of the appellant's brief on the ground that they refer to matter dehors the record and raise arguments for the first time on appeal. By decision and order on motion of this Court dated December 16, 2024, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion is denied.
CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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