2017-515 K C. ACTIVE CARE MED. SUPPLY CORP., A/A/O DAVILA v. AMERIPRISE AUTO & HOME — Motion by respondent to dismiss an appeal from an order of the Civil Court of the City of New York, Kings County, entered November 13, 2014, for failure to prosecute.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and the appeal is dismissed.January 18, 2018By: Pesce, P.J., Aliotta, Solomon, JJ.2017-515 K C. ACTIVE CARE MED. SUPPLY CORP., A/A/O DAVILA v. AMERIPRISE AUTO & HOME — Motion by appellant to vacate the order of this court dated April 14, 2017, which dismissed an appeal from an order of the Civil Court of the City of New York, Kings County, entered November 13, 2014, and for an enlargement of time to perfect the appeal. Cross motion by respondent to deny appellant’s motion and for other relief.Upon the papers filed in support of the motion and cross motion, and the papers filed in opposition thereto, it isORDERED that the appellant’s motion denied; and it is further,ORDERED that the respondent’s cross motion is denied as academic.January 18, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2017-515 K C. ACTIVE CARE MED. SUPPLY CORP. v. AMERIPRISE AUTO & HOME — Motion by appellant for leave to reargue, or, in the alternative, for leave to appeal to the Appellate Division, the denial of a motion to vacate dismissal, which was determined by decision and order of this court on August 18, 2017, on an appeal from an order of the Civil Court of the City of New York, Kings County, entered November 13, 2014.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.January 18, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.2017-1540 K C. U.S. EQUITIES CORP. v. VANTE — Motion by appellant on an appeal from an order of the Civil Court of the City of New York, Kings County, entered May 3, 2017, to continue a stay granted by decision and order on motion of this court dated October 18, 2017.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted on condition that appellant perfect the appeal by March 2, 2018; and it is further,ORDERED that in the event that the above condition is not met, the court, on its own motion, may vacate the stay, or respondent may move to vacate the stay on three days’ notice.January 18, 20182017-2229 Q C. THE PEOPLE v. CORBETT — Motion by appellant for leave to prosecute an appeal from an order of the Criminal Court of the City of New York, Queens County, entered October 2, 2017, as a poor person, and for an enlargement of time to perfect the appeal.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion seeking leave to prosecute the appeal as a poor person is denied as unnecessary, as appellant was granted leave to proceed as a poor person in the Criminal Court and, pursuant to Correction Law 168-n (3), his status as a poor person continues on appeal; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to appellant’s attorney and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that appellant’s attorney shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is furtherORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide appellant’s attorney with a copy of the presentence report prepared in connection with or considered by the trial court in connection with appellant’s risk level determination, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report; and it is further,ORDERED that the branch of the motion seeking an enlargement of time to perfect the appeal is denied as unnecessary, as the time to perfect the appeal has not begun to run (see Rules of the App Term, 2d, 11th & 13th Jud Dists [22 NYCRR] §731.8 [a]).January 18, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2017-2347 Q C. MENGLE v. TJ AUTO DOCTOR, INC. — Motion by respondents to dismiss an appeal from a judgment of the Civil Court of the City of New York, Queens County, entered June 4, 2015, for failure to prosecute.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and the appeal is dismissed.January 18, 2018Ninth and TenthJudical DisTRICTSBy: Marano, P.J., Tolbert, Garguilo, JJ.Jeffrey I. Klein, Esq., for appellants.James Fizzinoglia, respondent pro se.2012-305 W C. FIZZINOGLIA v. CAPOZZOLI — Consolidated appeals from (1) a decision of the City Court of New Rochelle, Westchester County (Susan I. Kettner, J.), dated February 2, 2012, deemed from a final judgment of that court entered February 9, 2012 (see CPLR 5512 [a]), and (2) a judgment of that court entered September 26, 2012. The final judgment, after a nonjury trial, awarded possession to petitioner in a summary proceeding brought pursuant to RPAPL 713 (7) (op 34 Misc 3d 1221[A], 2012 NY Slip Op 50196[U] [2012]). The judgment, after a hearing, awarded petitioner use and occupancy in the principal sum of $256,535.37 (op 36 Misc 3d 1230[A], 2012 NY Slip Op 51562[U] [2012]). ORDERED that the final judgment and judgment are reversed, without costs, and the petition is dismissed.Alleging that occupants (husband and wife) resided on the subject property as licensees and that petitioner terminated their license following the service of a 10-day notice to quit, the petition in this summary proceeding brought pursuant to RPAPL 713 (7) seeks possession of the property and use and occupancy. At a nonjury trial, it was uncontroverted that occupants had purchased the property in 2004, but had fallen behind on their mortgage payments and had faced foreclosure. Therefore, occupant Louis Capozzoli asked petitioner, his first cousin, to help him retain the property by purchasing it from occupants and allowing occupants to remain on the property. The parties also agreed that occupants would pay the mortgage, property taxes, insurance and other property-related expenses until they were able to obtain financing to repurchase the property from petitioner.1 In April 2007, petitioner purchased the property from occupants for $600,000, which he financed by a first and second mortgage, and the outstanding mortgages in occupants’ names, totaling $523,294.80, were satisfied. After the payment of concessions, taxes and fees from the mortgage proceeds, occupants received, at the closing, the remaining $46,123.71, from which they gave petitioner $10,000, and, they claim, they used the rest to maintain the property. It is also uncontroverted that occupants stopped making the mortgage payments eight or nine months later.2In the City Court, occupants argued, among other things, that petitioner did not have standing to commence the proceeding and that the City Court did not have subject matter jurisdiction. The City Court found that petitioner had standing since no constructive trust had been created, and that occupants had been properly served with a 10-day notice to quit. After trial, petitioner was awarded a final judgment of possession, and the City Court ordered that a hearing be held to determine the amount of use and occupancy owed to petitioner (op 34 Misc 3d 1221[A], 2012 NY Slip Op 50196[U] [2012]). Following the hearing, petitioner was awarded the principal sum of $256,535.37, upon a finding that a landlord-tenant relationship had existed between the parties (op 36 Misc 3d 1230[A], 2012 NY Slip Op 51562[U] [2012]).It is well settled that while, in a summary proceeding, the court does not have jurisdiction to adjudicate an affirmative claim of title, it can address any interposed legal or equitable defense (see RPAPL 743 ["any legal or equitable defense, or counterclaim" may be raised in a summary proceeding]; Nissequogue Boat Club v. State of New York, 14 AD3d 542 [2005]; Freire v. Fajardo, 28 Misc 3d 137[A], 2010 NY Slip Op 51453[U] [App Term, 2d Dept, 2d, 11th, and 13th Jud Dists 2010] [constructive-trust defense]; Muzio v. Rogers, 20 Misc 3d 143[A], 2008 NY Slip Op 51763[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). “Generally, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest” (Sharp v. Kosmalski, 40 NY2d 119, 121 [1976] [internal quotation marks omitted]). To establish a constructive trust, there must be (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Sharp v. Kosmalski, 40 NY2d at 121).Based on the aforementioned facts adduced at trial, the City Court properly determined that occupants did not establish a constructive-trust defense, since occupants failed to show that petitioner had been unjustly enriched from their transaction. Occupants remained in possession of the property for years after they had stopped making mortgage payments for a debt that petitioner had assumed for the benefit of occupants, and for which petitioner had the legal obligation to pay. Consequently, the City Court properly determined that petitioner was the owner and had standing to commence this proceeding.As the record shows, however, that occupants have been in exclusive possession of the property since petitioner purchased it in 2007 and, as the City Court expressly found in its determination regarding use and occupancy, there was a landlord-tenant relationship between the parties, occupants were tenants, not licensees (see Carbonella v. Carbonella, 52 Misc 3d 141[A], 2016 NY Slip Op 51176[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Hok Kwan Chu v. Lee, 39 Misc 3d 147[A], 2013 NY Slip Op 50859[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Rodriguez v. Greco, 31 Misc 3d 136[A], 2011 NY Slip Op 50696[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; Vitarelle v. Vitarelle, 21 Misc 3d 130[A], 2008 NY Slip Op 52045[U] [App Term, 2d Dept, 9th & 10th Jud Dits 2008]). Consequently, petitioner failed to establish a prima facie case, since the tenancy needed to be terminated by service of a 30-day notice of termination, and the 10-day notice to quit that was served was an inadequate predicate to this proceeding (see Real Property Law §228; Hok Kwan Chu v. Lee, 39 Misc 3d 147[A], 2013 NY Slip Op 50859[U], *2; Rodriguez v. Greco, 31 Misc 3d 136[A], 2011 NY Slip Op 50696[U], *2; Vitarelle v. Vitarelle, 21 Misc 3d 130[A], 2008 NY Slip Op 52045[U], *2).Accordingly, the final judgment and judgment are reversed and the petition is dismissed.MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.January 18, 2018
