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Macina v. Macina

60 N.Y.2d 691 Court N.Y. Decision date 1983-09-29 English

Contents

Majority

p. 691
Vito Macina, Appellant, v Joan Macina, Respondent.
Decided September 29, 1983
p. 692
APPEARANCES OF COUNSEL
Philip F. Alba for appellant.
p. 693
Edward J. Ledogar and James P. Shannon for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Supreme Court found, and the Appellate Division affirmed the finding that plaintiff has failed to demonstrate that defendant promised to reconvey the subject property. That being so, and there being support in the record, the lower courts properly held that plaintiff is not entitled to relief in the nature of a constructive trust. Nor could the trial court grant plaintiff relief on a claim of equitable lien, inasmuch as such a theory of recovery was never raised in the pleadings or at trial (see Collucci v Collucci, 58 NY2d 834 ).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.

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