Wolff v. Glick

100 A.D.3d 875, 954 N.Y.S.2d 592

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 2012
• Status: Published

Opinion

In an action, inter alia, to impose a constructive trust upon a business, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Putnam County (Nicolai, J), dated September 15, 2010, as, upon a decision of the same court dated July 26, 2010, made after a nonjury trial, is in favor of the defendants and against him dismissing the complaint.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses” (Rowe v Kingston, 94 AD3d 852, 853 [2012]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). “In order to obtain the remedy of a constructive trust, a plaintiff generally is required to demonstrate four factors: (1) a fiduciary or confidential relationship between the parties, (2) a promise, (3) a transfer of some asset in reliance upon the promise, and (4) unjust enrichment flowing from the breach of the promise” (Mei Yun Chen v Mei Wan Kao, 97 AD3d 730, 730 [2012]; see Sharp v Kosmalski, 40 NY2d 119, 121 [1976]). Applying these principles, we discern no basis to disturb the Supreme Court’s determination. Accordingly, the Supreme Court properly dismissed the plaintiffs cause of action to impose a constructive trust.

The plaintiffs remaining contentions, made in connection with the remaining causes of action, are without merit. Rivera, J.E, Balkin, Leventhal and Chambers, JJ., concur.