        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

816
CA 10-02268
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


LUANNE DELZER AND JEFFREY FEUERSTEIN,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

JILL M. ROZBICKI, DEFENDANT-RESPONDENT.


ARTHUR J. RUMIZEN, BUFFALO, FOR PLAINTIFFS-APPELLANTS.

THOMAS A. STEFFAN, ALDEN, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frank A.
Sedita, Jr., J.), entered November 4, 2010. The order granted
defendant’s motion for summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this action seeking to impose a constructive
trust on certain real property, plaintiffs contend that Supreme Court
erred in granting defendant’s motion for summary judgment dismissing
the complaint. We reject that contention. We note at the outset that
defendant in fact sought dismissal of the complaint pursuant to CPLR
3211, but plaintiffs in opposition characterized defendant’s motion as
one “for summary judgment,” and the court treated it as such. We
therefore do the same, inasmuch as plaintiffs have thereby waived any
objection to such treatment by their own characterization of the
motion (cf. CPLR 3211 [c]). On the merits, it is well settled that
“[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” (Potter v Davie, 275
AD2d 961, 963; see Sharp v Kosmalski, 40 NY2d 119, 121). “In order to
invoke the court’s equity powers, plaintiff[s] must show a
confidential or fiduciary relationship, a promise, a transfer in
reliance thereon, a breach of the promise, and defendant’s unjust
enrichment” (Potter, 275 AD2d at 963; see Scivoletti v Marsala, 97
AD2d 401, 402, affd 61 NY2d 806). In support of her motion, defendant
acknowledged the confidential relationship but established as a matter
of law that there was no promise, no transfer in reliance on the
alleged promise, no breach of the alleged promise, and no unjust
enrichment on defendant’s part, and plaintiffs failed to raise a
                                 -2-                           816
                                                         CA 10-02268

triable issue of fact to defeat the motion (see generally Zuckerman v
City of New York, 49 NY2d 557, 562).




Entered:   June 17, 2011                        Patricia L. Morgan
                                                Clerk of the Court
