Opinion
2012-07-5
LMT CAPITAL MANAGEMENT, LLC, appellant, v. Diane A. GERARDI, et al., respondents, et al., defendant.
Long, Tuminello, Besso, Seligman, Werner & Sullivan, LLP, Bay Shore, N.Y. (Michelle Aulivola of counsel), for appellant. Duane Morris LLP, New York, N.Y. (Sheila Raftery Wiggins of counsel), for respondent JP Morgan Chase Bank.
Long, Tuminello, Besso, Seligman, Werner & Sullivan, LLP, Bay Shore, N.Y. (Michelle Aulivola of counsel), for appellant. Duane Morris LLP, New York, N.Y. (Sheila Raftery Wiggins of counsel), for respondent JP Morgan Chase Bank.
In an action, inter alia, to impose a constructive trust on certain real property, for a judgment declaring that the defendant Diane A. Gerardi holds title to the property as constructive trustee for the benefit of the plaintiff, and to direct that defendant to convey the property to the plaintiff, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated September 7, 2011, as granted that branch of the motion of the defendant Diane A. Gerardi which was pursuant to CPLR 4404(b), in effect, to modify a judgment of the same court, dated May 18, 2011, which, after a nonjury trial, and upon findings of fact and conclusions of law dated May 18, 2011, inter alia, declared that the defendant Diane A. Gerardi holds title to the subject property as constructive trustee for its benefit and directed that defendant to convey the subject property to it, so as to direct that (a) the conveyance was subject to two existing mortgages held by the defendants North Fork Bank and JP Morgan Chase Bank, respectively, and (b) the deed specify that the title conveyed to the plaintiff is subject to the two existing mortgages unless the plaintiff pays the balances on both mortgages in connection with the conveyance.
ORDERED that the order is affirmed insofar as appealed from, with costs to the defendant JP Morgan Chase Bank.
The imposition of a constructive trust, which was sought by the plaintiff here, is an equitable remedy ( see Simonds v. Simonds, 45 N.Y.2d 233, 241, 408 N.Y.S.2d 359, 380 N.E.2d 189;Rowe v. Kingston, 94 A.D.3d 852, 942 N.Y.S.2d 161). The “Supreme Court has discretion to fashion a suitable equitable remedy” ( Town of Caroga v. Herms, 62 A.D.3d 1121, 1125, 878 N.Y.S.2d 834, citing Matter of Gerges v. Koch, 62 N.Y.2d 84, 95–96, 476 N.Y.S.2d 73, 464 N.E.2d 441). “A court of equity can never be justified in making an inequitable decree” ( McCann v. Chasm Power Co., 211 N.Y. 301, 305, 105 N.E. 416). Furthermore, “[e]xcept as provided in [CPLR] section 3215, the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just” (CPLR 3017[a] ).
Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in modifying its judgment by clarifying that the transfer of the subject property from the defendant Diane A. Gerardi to the plaintiff was subject to two existing mortgages in favor of the defendants North Fork Bank and JP Morgan Chase Bank, and that the deed was to specify as much unless the plaintiff pays the balances on both mortgages in connection with the conveyance ( see generally Groh v. Halloran, 86 A.D.2d 35, 38, 448 N.Y.S.2d 683). “Since the plaintiff[ ] sought equity in the instant action ... the court was entitled to fashion appropriate equitable relief” ( Ellis v. Oceanhill Brownsville Tenant Assn., 263 A.D.2d 496, 496, 691 N.Y.S.2d 926).
The remaining contention of the defendant JP Morgan Chase Bank is improperly raised for the first time on appeal, and, accordingly, is not properly before this Court ( see Washington Mut. Bank v. Valencia, 92 A.D.3d 774, 775, 939 N.Y.S.2d 73). The plaintiff's remaining contentions are without merit.