Ricotta v. Ricotta

135 A.D.2d 1143, 523 N.Y.S.2d 271, 1987 N.Y. App. Div. LEXIS 53012

Opinion

— Order unanimously reversed on the law with costs, in accordance with the following memorandum: Special Term erred in dismissing plaintiffs first cause of action for a constructive trust on a home which she had deeded to defendant, her daughter. A confidential or fiduciary relationship is sufficiently alleged by asserting a mother-daughter relationship (cf., Sharp v Kosmalski, 40 NY2d 119, 121; see, D’Aprile v Blythe, 53 AD2d 1059, 1060). Defendant failed to meet her burden of showing that she was entitled to summary judgment dismissing the first cause of action (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). She has not come forward with an affidavit, and her attorney’s affidavit merely cites inconsistencies in the testimony of plaintiff at an EBT and in an earlier affidavit. Special Term also erred in vacating plaintiffs lis pendens but it cannot be reinstated because the property was sold after the lis pendens was vacated and before a temporary restraining order preventing the sale was served. (Appeal from order of Supreme Court, Monroe County, Siracuse, J. — summary judgment.) Present— Denman, J. P., Boomer, Pine, Balio and Davis, JJ.