JAMES C. HUDSON, J.

Erubiscit Lex Filios Castagares Parentes. The prescience of the immortal Lord Coke is clearly demonstrated by the facts which presented in the case at bar.

The matter before us is vexing because it involves a dispute between two individuals, who, according to the accepted tenets of society, should be closely bound by the natural impulses of parental devotion and filial piety. The claims of the parties sound exclusively in equity and seek the imposition of a constructive trust arising from the conveyance of realty from the plaintiff/father to his son.

Before the Court addresses various facts and legal arguments, it wishes to commend Ms. Philips and Messrs. Braslow and Wexler for their advocacy on behalf of their respective clients. Their legal acumen, zealousness and sense of propriety can only be described as sterling.

Certain facts are not in dispute. On February 17th, 1998, the plaintiff transferred all right, title and interest in his home located at 826 South 5th Street, Lindenhurst, County of Suffolk, New York, to the defendant, his son. Title was conveyed in fee simple and the real property transfer form listed the conveyance as a gift. In October of 2000, plaintiff commenced an action for rescission pursuant to RPAPL Article 15. This action was dismissed by order of the Court dated March 19th, 2001 (Costello, J.) In May of 2001, plaintiff commenced the instant suit for a constructive trust directing a reconveyance or a life estate.

At a nonjury trial before the Court, the plaintiff initially called two nonparty witnesses, a Ms. Hoffman and a Ms. Ryan. Friends of the plaintiff, they appeared to be motivated by a desire to help a friend and punish an ungrateful son. This feeling was understandable but it reduced the credibility of the plaintiff's witnesses to the point that they were of little utility.

The plaintiff also took the stand. After observing his demeanor and listening to his answers, the Court finds his testimony to be less than believable. Plaintiff did aver (and defendant did not seriously contradict) that he owned no other homes and was on a limited income (being a government pensioner).

Plaintiff then called his treating psychiatrist. Dr. Kirschen's testimony was entirely believable. Being based in part on plaintiff's relating events to him, however, it was a house built on sand. The sole value which can be attached to Dr. Kirschen's statements was his acceptance (based on his scientific opinion) of plaintiff's mental condition.

Turning to the proof submitted by the defendant, the Court is faced with a contrast. Ms. Nobilio's testimony was believable and favored the defense on the question of the intent of the parties concerning the transfer of the deed. She also admitted to fearing the plaintiff, which may have influenced her testimony.

The defendant then took the stand. The animus that the elder Mr. Sekelsky has for his son is more than reciprocated. The obvious hatred that comes from both parties washed over the courtroom and colored their proof. It left the Court with the task, as the trier of fact, to separate the "gold from the dross."

Amid the swirling accusations of the parties stood one island of absolute certainty — the deed. The written proof of ownership of the locus in quo. It can be challenged but not denied. The state has a great interest in the permanence of title to property and it will not be lightly set aside. Any agreement pertaining to an interest in land must generally be in writing to be enforceable (29 Car. II) (GOL § 5-703). Obviously biased testimony does not rise to the occasion. Plaintiff has admittedly failed to prove a legal claim by a fair preponderance of the credible evidence and turns to equity for succor.

The Court must determine if the circumstances call for the invocation of its equitable powers. Judge Cardozo eloquently stated the theory of recovery put forth by the plaintiff. "A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest equity converts him into a trustee" ( Beatty v. Guggenheim Exploration Co., 225 NY 380, 386; 122 N.E. 378, 380). The balm of equity, however, is of a lesser dignity than the law and can be used only to supplement (and never to circumvent) common law, witness the maxim aequitas sequitur legem (emphasis ours).

Defendant has asserted that the plaintiff lacks standing to seek equity. Defense counsel states that assuming, arguendo, plaintiff's suicidal intentions were legitimate, they constitute dirty hands. Counsel is relying on the venerable principle "he that hath committed iniquity, shall not have equity" (Richard Francis, Maxims of Equity Maxim II). Ms. Philips' eloquence aside, the self-destructive tendencies of the plaintiff actually argue in favor of the plaintiff. Defendant has urged the Court to accept the argument that the transfer of the locus in quo constituted a gift. "The requisites for a valid gift inter vivos are simple: there must be an intent on the part of a donor to give; there must be a delivery of the property given pursuant to such intent; and there must be acceptance on the part of the donee" ( In Re Szabo's Estate, 10 NY2d 94, 98, 176 NE2d 395, 217 NYS2d 593).

If the Court were to find plaintiff's suicidal intent to be established, the question becomes whether the gift was truly inter vivos or whether we should apply the law pertaining to gifts causa mortis. The law in this area is of the most venerable lineage possible. It is a legal issue pertaining to the transfer of property which first finds discussion in the great compendium of the Emperor Justinian which noted, " Est etiam aliud genus adquisitionis, donatio. Donationum autem duo genera sunt: mortis causa et non mortis causa" (Inst. Book II, Title VII).

This dichotomy of inter vivos and causa mortis has continued to the present day. "A gift causa mortis must contain all of the essential elements of a valid inter vivos gift and, in addition, the gift must have been made in contemplation of the donor's impending death and the donor must have died from the existing ailment or peril without revocation of the gift" ( In the Matter of the Estate of Curry, 143 Misc 2d 252, 255 [Surr. Ct., Broome Co. 1989], 540 NYS2d 152, citing Champney v. Blanchard, 39 NY 111; Grymes v. Hone, 49 NY 17; and Bedell v. Carll, 33 NY 581). When the means of the impending demise is suicide, the law is emphatic. "It would be against public policy to uphold a gift intended to take effect by means of voluntary self-destruction" ( Bainbridge v. Hoes, 163 A.D. 870, 149 N.Y.S. 20, 23). After considering the plaintiff's demeanor on the stand in response to this critical question (i.e., his intent to kill himself) we find that he has failed to establish that his transfer was in contemplation of suicide.

Under the circumstances presented, the parties have clean hands (relative to each other) and are not debarred from seeking equity. The specific equitable device which may be applicable herein is the constructive trust. "Generally, before granting the equitable remedy of a constructive trust, four elements must be established: (1) a confidential or fiduciary relationship, (2) a promise, express or implied, (3) a transfer in reliance thereon, and (4) unjust enrichment" ( In Re Azzinaro, 13 AD3d 618 [2nd Dept. 2004], 786 NYS2d 343). These factors are not absolute, instead, they are "flexible considerations" which a court should use, in varying degrees, to determine if a constructive trust is warranted ( Tordai v. Tordai, 109 AD2d 996 [3rd Dept. 1985], 486 NYS2d 802). There was not one scintilla of proof that an express promise was made between the parties concerning the property contrary to the terms of the deed. In some instances, however, this absence will not be the death knell of a claim in equity. As the Court stated in the case of Sharp v. Kosmalski ( 40 NY2d 119, 386 NYS2d 72), "Even without an express promise, however, courts of equity have imposed a constructive trust upon property transferred in reliance upon a confidential relationship. In such a situation, a promise may be implied or inferred from the very transaction itself" (at 122).

Defendant cites to the holding in D'Aprile v. Bythe ( 53 AD2d 1059 [4th Dept. 1976], 386 NYS2d 144) in support of his position that the mere existence of the confidential relationship, in and of itself, does not give rise to the existence of a promise. This case is clearly distinguishable from the matter before us. The D'Aprile court merely stated, "The trial court's finding of the absence of any agreement' between the parties embodying an implied or express agreement or promise, together with the mother-daughter relationship, upon which to impose a constructive trust of the subject property was proper." ( Id. 1060). There is no other factual recitation to refer to. The Court must also note that D'Aprile is cited by the dissent in what we consider to be a controlling case ( In the matter of Wieczorek, 186 AD2d 204 [2nd Dept. 1992], 587 NYS2d 755). In Wieczorak the majority stated, "Although there is no indication of an express promise . . . a promise can be inferred by the court where property has been transferred in reliance upon a confidential relationship (citations omitted)" (at 205). Defendant's reliance on Tutak v. Tutak ( 123 AD2d 758 [2nd Dept. 1986], 507 NYS2d 232) is also chimerical. Tutak entailed a discussion on the inapplicability of the doctrine of promissory estoppel. Promissory estoppel requires a specific representation by one party upon which the innocent party relies to their substantial detriment ( Id. at 760). That is not the case here. Defendant's remaining authority is similarly distinguishable.

The resolution of the competing claims cannot be answered without addressing the issue of unjust enrichment. Plaintiff reluctantly admitted that (post-conveyance), the defendant had maintained and improved the home and property. This was documented by certain receipts entered into evidence. Defendant's actions prior to the transfer of the deed are minimally documented but his testimony as to his maintenance of the property was eminently believable, especially in light of plaintiff's claims of physical decrepitude. These actions by the defendant, however, must also be considered in light of the fact that the younger Mr. Sekelsky was residing at the home and such improvements and maintenance were for his comfort as much as his father's. It is readily evident, however, that plaintiff did not obtain the pecuniary benefits from the transfer of his home to his son which an arms length transaction with a stranger for value would have yielded. The fact that the defendant has made considerable improvements to the property post-conveyance does not give rise to a claim of unjust enrichment against his father. As the fee holder/remainderman, his maintenance/improvements ultimately inure to his benefit.

Finally, we must discuss whether a promise may be inferred as a result of the nature of the transaction and the relationship of the parties. In light of the elder Mr. Sekelsky's financial limitations, where was he to live after he had deeded over his sole residence to his son? As noted above, the transfer of the property did not garner him any ready cash with which to purchase another property. The only logical and just inference is that the defendant was to receive fee simple without any immediate financial cost in return for his father's ability to continue residing at the locus in quo. As proof of the tacit understanding between the parties, the evidence is clear that the parties continued to reside together without the elder Mr. Sekelsky making any alternative housing arrangements.

It is true that the doctrine of parentes potestas is consigned to history and we are constrained to view Paul Sekelsky as an individual legally unfettered by any affection towards his parent. Still the maxim of Lord Coke with which we began our analysis reminds us that there is no danger in the following presumption: just as a child may call upon his/her mother or father for sustenance when they are not yet ready to venture into the world, so may a parent reasonably assume that, once they are worn down by the cares and vicissitudes of life, and having given that one possession that they cherished above all other possessions — their home — to that child, they are entitled, if not to a place of honor, at least a place by the hearth, where they may spend their remaining days in dignity.

We find that the circumstances warrant the recognition that the parties intended a life estate for the plaintiff with the defendant as the vested remainderman. To hold otherwise would result in unjust enrichment to the defendant. To direct a reconveyance of the property in fee simple to the plaintiff would frustrate the intent of the parties to transfer title. Judgment will be directed in favor of plaintiff on his cause of action for a life estate. Defendant's counterclaims will be dismissed.

Settle judgment.