Ruiz v. Meloney

In an action to impose a constructive trust on certain real property, the defendant appeals from an order of the Supreme Court, Nassau County (Feinman, J.), dated October 18, 2004, which granted the plaintiffs motion for a preliminary injunction, enjoined the defendant from, inter alia, evicting the plaintiff from the subject premises, and directed the plaintiff to post an undertaking in the amount of only $5,000.

Ordered that the order is affirmed, with costs.

To be entitled to a preliminary injunction, the movant must

Under the circumstances of this case, the Supreme Court properly determined, with respect to the only factor relevant herein, that the plaintiff established a likelihood of success on her cause of action to impose a constructive trust on the real property at issue (see Sharp v Kosmalski, 40 NY2d 119 , 121-123 [1976]; Eickler v Pecora, 12 AD3d 635 [2004]; Hightower v Reid, supra at 441 ; Gottlieb v Gottlieb, 166 AD2d 413 [1990]; Washington v Defense, 149 AD2d 697 [1989]; Lester v Zimmer, 147 AD2d 340 [1989]). In order to impose a constructive trust upon real property, a plaintiff must prove: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Sharp v Kosmalski, supra; Eickler v Pecora, supra at 636 ). The plaintiffs allegations that she contributed time, money and energy into finding the home, purchasing and then maintaining it are sufficient to satisfy the “transfer in reliance” element (see Eickler v Pecora, supra; Matter of Bayside Controls, 295 AD2d 343 , 346 [2002]; Gottlieb v Gottlieb, supra; Washington v Defense, supra; Lester v Zimmer, supra). Here, the parties cohabitated for four years and bore a child together, although the defendant denies that he intended to marry the plaintiff. Together, they looked for a home, found one, and negotiated its purchase. The plaintiff allegedly contributed part of the down payment and paid for various expenses for upkeep of the home with the understanding that the parties would jointly own the home and in reliance on the defendant’s promise that he would execute a deed bearing both their names. While the defendant denies he made such a promise and denies that the plaintiff contributed to the down payment, issues of fact do not preclude a finding of likelihood of success on the merits because conclusive evidence is not

The defendant’s remaining contention is without merit. Schmidt, J.P., Krausman, Luciano and Covello, JJ., concur.