Monaco v. Monaco

75 A.D.2d 808, 427 N.Y.S.2d 498, 1980 N.Y. App. Div. LEXIS 11397

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1980
• Status: Published

Opinion

In an action, inter alia, for divorce, an equitable division of defendant’s solely held assets and damages for breach of an implied marital contract, defendant appeals from so much of an order of the Supreme Court, Suffolk County, dated November 2, 1979, as held that plaintiff’s complaint stated • a cause of action for the imposition of a constructive trust or equitable lien on the defendant’s solely held real and personal property. Plaintiff cross-appeals from so much of the same order as dismissed her second cause of action insofar as it sought an equitable division of defendant’s solely held real and personal property, and dismissed her third cause of action seeking damages for breach of an implied marital contract. Order modified, on the law, by deleting that portion thereof which held that the complaint stated a cause of action to impress a constructive trust and substituting thereof a provision dismissing so much of the complaint as seeks such relief. As so modified, order affirmed insofar as appealed from, without costs or disbursements. When given a liberal reading with plaintiff’s affidavit in opposition to the cross motion, the second cause of action in the complaint sets forth a claim for an equitable lien on defendant’s real and personal property. It does not, however, state a cause of action to impress a constructive trust. Hopkins, J. P., Lazer, Gibbons and Weinstein, JJ., concur.