DECISION/ORDER This is an action in which the plaintiff seeks to impose a constructive trust on property located at 735 E. 229th Street, Bronx, New York. That property is owned by defendant Bozena Bongiorno. She has asserted counterclaims for unjust enrichment and conversion. The following constitutes the courts findings of fact and conclusions of law after a non jury trial. The parties were involved in a romantic relationship which commenced in 2008 or 2009 and ended in 2018. The parties met each other years before when the plaintiff was teaching at Westchester Community College and the defendant was a student. The parties eventually moved in together along with the defendant’s son from a previous relationship. In 2009 they decided to buy a home. Plaintiff contends that he enlisted his brother-in-law who was a real estate broker to assist in finding a home. On Dec. 31, 2009 a three family home was purchased in the name of the defendant at 735 E. 229th Street, Bronx, New York. Because he had poor credit at the time it was decided that title to the home would solely be in the defendant’s name. The plaintiff claims that he gave the defendant between 11 and 12 thousand dollars for the down payment of the house. In fact the plaintiff signed a “gift letter” on December 16, 2009 (Defl. Ex. A) indicating that he loaned $11,500 to the defendant as a gift. The letter indicates that no repayment of the money was expected. He claims that this letter was only signed at the request of the mortgage lender, in order for the defendant to qualify for the mortgage. However, he contends that the defendant promised that once his credit improved then title would be transferred to establish his 50 percent ownership. The money he loaned her for the closing came primarily from his 401K account. While living at the premises the mortgage was paid by rents collected from two tenants and the balance of the outstanding mortgage was shared by the parties. Several years later the plaintiff claims that the defendant complained about the safety of the neighborhood and the couple decided to move out and find a new home. In 2012 the plaintiff purchased a home at 1626 Hering Ave., Bronx, New York. The title to this premises was in plaintiff’s name only. The defendant gave the plaintiff $22,000 which was used towards the down payment of the property. The plaintiff claims that this was money owed to him by the defendant, although he could not adequately explain exactly why she owed him this money other than to state that he was paying her bills. When questioned by the Court he admitted that the money paid to him by the plaintiff was to reimburse him for the down payment he had given her in 2009. In 2018 the parties ended their relationship and this action ensued. The defendant testified that it was never the parties intention to jointly own the home at 735 E. 229th Street. While he did loan her approximately $11,000 towards the down payment for the home she repaid him $22,000 two years later when he purchased the Hering Avenue home. The money she used to pay him the $22,000 came primarily from a refund of surplus funds in connection with the closing on the 229th Street property. She gave him two checks, one for $15,000 and one for $7,000. In July of 2012, she loaned him $4,100 in connection with a business he was involved with. As a condition to loaning him that money she had him sign a notarized letter which indicated that the house at 735 E. 229th Street remained her separate property and the home located at Hering Avenue belonged to him. She had him sign this letter because he had continuously referred to the 735 E. 229th Street property as “ours”. Mr. Samuel claimed that he signed this letter under duress (Transcript p.40 line 18) and always believed that the defendant would transfer him half ownership. In his testimony in support of his claim of a constructive trust the plaintiff claims that he expended a great deal of time and money in the maintenance and upkeep for the premises. He claims that he was a de facto superintendent for the premises and was involved in upgrading and repairing the apartments. In addition to this role he claims to have located tenants to rent the premises, negotiated leases and collected rents. He further states that he made sure that the premises were maintained properly and was responsible for such things as repairing, cleaning, removing trash and shoveling snow at the house. He also claims that he paid her half of the outstanding monthly mortgage left after receipt of the rent payment s from the tenant. The defendant denies that the plaintiff was so intimately involved in managing the property. While admitting that he assisted in chores relating to the upkeep of the property, including shoveling snow and on occasion picking up rent checks left at the premises, his role was not as he described. She believed that in paying back the money he had given her for the down payment so that he could buy his own home, each party was to retain their own property. Further she maintains that the money he paid to her was to cover his half of the rent for living at the house just as she paid him her portion of the rent when he purchased the home at Hering Ave. The defendant argues that the plaintiff has failed to establish a constructive trust. First the defendant contends that the plaintiff commenced this action after the applicable statute of limitations and second that the plaintiff has failed to prove that she has been unjustly enriched, a requirement necessary to prove the existence of a constructive trust. To impose a constructive trust four factors must be established: 1) a confidential or fiduciary relationship, 2) a promise 3) a transfer in reliance thereon, and 4) unjust enrichment (Sharp v. Kosmalski 40 N.Y.2d 119). These elements only serve as a guideline, a constructive trust may still be imposed even if all of the elements are not established (Marini v. Lombardo 79 A.D.3d 932), A constructive trust will be imposed when an unfulfilled promise to convey an interest in property induces another, in the context of a confidential relationship, to give the promisor property resulting in unjust enrichment (Washington v. Defense 149 A.D.2d 697). A party must establish the elements of a constructive trust by clear and convincing evidence (Ali v. Rahaman 224 A.D.3d 721). A cause of action for a constructive trust is governed by a six year statute of limitations pursuant to CPLR §213(1) and starts to run upon the occurrence of the wrongful act giving rise to the duty of restitution (Barone v. Barone 130 A.D.3d 765). A determination of when the wrongful act triggering the running of the Statute of Limitations occurs depends upon whether the constructive trustee acquired the property wrongfully, in which case the property would be held adversely from the date of acquisition…or whether the constructive trustee wrongfully withholds property acquired lawfully from the beneficiary, in which case the property would be held adversely from the date the trustee breaches or repudiates the agreement to transfer the property (Auffermann v. Disti 56 A.D.3d 502 [citations omitted]). Here, the defendant clearly did not acquire the property wrongfully. Thus, the statute of limitations would begin to run from the date that the defendant allegedly breached or repudiated the agreement. That date would by July 25, 2012 when the defendant asked the plaintiff to sign a letter in which he recognized that the property at 735 East 229th Street belonged solely to the defendant. A claim for a constructive trust would therefore expire 6 years later on July 25, 2018. This proceeding was commenced on July 13, 2018 which occurred before the expiration of the statute of limitations. The defendants claim that the action is barred by the statute of limitations is therefore without merit. Turning to the merits of the claim for constructive trust, the court finds that the material elements of a constructive trust have been met with the exception of one. First it is clear that based upon the relationship of the parties that they had a fiduciary or confidential relationship. The parties were involved in a romantic relationship and as described by the plaintiff held themselves out to be husband and wife without actually marrying. A couple romantically involved whether married or not clearly establishes a confidential or fiducuary relationship (see e.g. Ali v. Rahamann 224 A.D.3d 721 [brother in law and sister in law]; Henning v. Henning 103 A.D.3d 778 [married couple]). As to the second element there is no requirement that the promise to transfer be expressly stated and may be inferred from the very transaction itself (Canas v. Oshiro 221 A.D.3d 652). The court does give some credence to plaintiff’s claim that the parties were to share in the ownership of the home although the plaintiff was not named on the deed. It seems perfectly reasonable that based upon his poor credit history that he was unable to obtain a mortgage and instead agreed with the defendant that she would apply for the mortgage and he would provide a portion of the down payment. The Court also credits his testimony with respect to the money and labor he invested in maintaining the premises. It seems very credible that the parties had intended to share the property jointly. The third element is also met. Courts have held that the transfer element for the imposition of a constructive trust may be extended to include instances where funds, time,and effort were contributed in reliance on a promise to share in some interest in property even though no transfer actually occurred (Estate of Uddin v. Miah 229 A.D.3d 764; Canas supra). A constructive trust will be imposed when an unfulfilled promise to convey an interest in property induces another, in the context of a confidential relationship, to give the promisor property resulting in unjust enrichment (Washington v. Defense supra). An equitable interest in the property may be established where the party has expended money, time and labor in maintaining and improving the property (Hemming v. Hemming supra; Marini v. Lombardo supra). Here, the credible evidence establishes that the plaintiff expended time, money and labor in maintaining and improving the premises. The last element which must be shown prior to the imposition of a constructive trust is unjust enrichment. To prove unjust enrichment a party must show that the other party was enriched at his or her expense and it is against equity and good conscience to permit that person to retain what is sought to be recovered (Matter of Uddin supra [citations omitted]). Stated another way, unjust enrichment occurs when in equity and good conscience a party obtains or possesses value that rightfully belongs to another party (Marini supra citing Parsa v. State of New York 64 N.Y.2d 143). The plaintiff has not established by clear and convincing evidence the element of unjust enrichment. Less than two years after the purchase of the home at 735 E. 229th Street the defendant gave the plaintiff the sum of $22,000 in order for the plaintiff to purchase a home. Shortly thereafter the defendant loaned the plaintiff another $4,100 with the express intention that the money was loaned on the condition that each party retained their own interest in the two respective properties. While the plaintiff claims that this letter was signed “under duress”, the court rejects such claim. A defense of duress is established upon the showing of a wrongful threat precluding the exercise of free will (Kim v. An 150 A.D.3d 590). Although the plaintiff may have been desperate when he agreed to sign the letter it cannot be said that the defendant made any wrongful threat precluding the exercise of plaintiff’s free will. In the instance case, the defendant returned the plaintiff’s down payment amount plus an additional sum of more than $10,000 in order for the plaintiff to be able to purchase his own home. It was especially made clear to the plaintiff in 2012 that the parties intended that each would retain ownership of their own property. Under the facts as presented the court cannot find that by allowing the defendant to retain ownership of the property it would serve to unjustly enrich her. Had the defendant not provided funds for a down payment, the plaintiff would not have been able to purchase the property at Hering Ave. Thus it cannot be said that it would be against equity and good conscience to allow the defendant to retain her sole ownership of 735 E. 229th. Street. The cases cited by the plaintiff in support of his claim do not lead the Court to a different result. In Whalen v. McElroy (71 Misc.3d 1214[A]) the court was faced with a motion pursuant to CPLR §3211(a)(7) to dismiss the claim for a constructive trust. The Court in denying the motion found that a claim for a constructive trust had been properly plead and not whether a constructive trust actually existed. Similarly in Rock v. Rock (100 A.D.3d 614) the Court expressly affirmed the lower Court’s finding that a constructive trust had not been established. The Court did find that the plaintiff had an equitable lien on the property for money paid by the plaintiff over 20 years to maintain and improve the property. The Court did not award the plaintiff an equitable interest in the property but allowed the plaintiff a lien against the sale of the property to reimburse him for payments made by plaintiff to maintain the premises. It could be argued that the same principal of an equitable lien could be applied here, although it has not been plead. Approximately two years after closing, the defendant claims that she received $15,000 dollars as a refund for overpayment of the closing costs on the East 229th Street property. She claims to have received $11,500 from the plaintiff to purchase the home. After receipt of the returned funds she gave the plaintiff $15,000 a few months before he was to close on the Hering Avenue property. She gave him an additional $7,000 one month before the closing. The plaintiff initially testified that these funds were to pay him back for payments he had made in connection with her car and for other expenses. However his testimony with regard to this claim was not credible and the Court found him to be evasive and vague when explaining this. When asked if the $22,000 paid to him by the defendant represented money he had given to her for purchase of the house, he testified that was “correct” (Transcript p.68-69 line. 23-3). It seems clear that the defendant paid the plaintiff back his initial payment for purchase of the home at 735 E. 229th Street, so that he could purchase his own home. The plaintiff has failed to demonstrate that the defendant would be unjustly enriched if she was not required to transfer one half ownership of the premises. The plaintiff was given money by the defendant to purchase his own property and he cannot complain that the defendant has been unjustly enriched. Since the plaintiff has failed to demonstrate that the defendant has been unjustly enriched a claim for the imposition of a constructive trust has not been established and judgment in favor of the defendant dismissing the complaint is granted. The defendant has filed counterclaims for conversion and unjust enrichment seeking to recover money for items she purchased for the home while the parties were living together. These items include air conditioners, furniture, and home furnishings. Most of these items were purchased more than 10 years ago. The defendant claims that when she left the Hering Ave. home in 2018 the items remained and that the plaintiff has had the beneficial use of them. The court declines to award any damages for these items. First, given the age of many of the items, the Court cannot determine the present value. For example the defendant testified that she purchased air conditioners in 2010. The value of those units if they still exist, is minimal. She claims to have purchased mattresses in 2007 and 2013 for which seeks reimbursement. Mattresses that are now more than ten or seventeen years old have little value. She purchased decorative items that are now more than a decade old and retain very little value. Moreover all the items were purchased at a time when the parties were romantically involved and each benefitted from the purchase. The items purchased were to be used in the home they shared with each other, and were used for the years that the parties were a couple. They weren’t solely purchased for the benefit of the plaintiff. They can be seen as gifts made during the relationship. The testimony establishes that the parties were sharing all expenses and there was never any expectation that the plaintiff would have to reimburse the defendant if the relationship ended. As succinctly stated in Soderholm v. Kosty (177 Misc.2d 403 [Justice Court, Chemung Cty]) ‘[W]e know that as a matter of human experience, goods, services and financial advances are frequently rendered between two people not for remuneration but because they value each others company or because they find it a caring, convenient or rewarding thing to do.” The decision goes on to state that “[G]iven the usual give and take normally associated with cohabitation and the giving and receiving…of love, affection, gifts and the like, it cannot be said that equity and good conscience cry out for fiscal adjustment.” Many of the purchased items were bought to make the home more presentable or comfortable and were items that parties involved in a romantic relationship would purchase, not with an expectation of being reimbursed, but for use and enjoyment by each other. This claim seems to only have been filed in retaliation for the defendant’s lawsuit. The plaintiff has failed to establish a claim for unjust enrichment or for conversion. To the extent that certain items belonging to the defendant remain at the plaintiff’s residence the parties expressed a willingness at trial for the defendant to retrieve those items. The parties may contact the Court to assist in the transfer of such property if needed. Accordingly, having heard the claims of the plaintiff seeking to impose a constructive trust on the property located at 735 E. 229th Street, Bronx, New York, the Court finds that the plaintiff has failed to meet his burden by clear and convincing evidence. The complaint is therefore dismissed and judgment is granted in favor of the defendant. The defendant has failed to meet her burden on the counterclaims for conversion and unjust enrichment and are therefore dismissed. This shall constitute the decision and Judgment of the Court. Dated: November 22, 2024
