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Nelson v. McKay

Appellate Division of the Supreme Court of New York, Second Department
Jun 26, 2007
41 A.D.3d 802 (N.Y. App. Div. 2007)

Opinion

No. 2006-11266.

June 26, 2007.

In an action, in effect, to impose a constructive trust on certain real property, in which the defendant counterclaimed for, inter alia, a direction that she convey title to the property into the parties' names as joint tenants with right of survivorship, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.H.O.), dated November 8, 2006, which, after a nonjury trial, and upon a decision of the same court dated September 30, 2006, inter alia, imposed a constructive trust in the form of a tenancy in common in the name of the plaintiff and the defendant.

Monte J. Rosenstein, P.C., Middletown, N.Y., for plaintiff/counterclaim defendant-appellant.

Bloom Bloom, P.C., New Windsor, N.Y. (Daniel J. Bloom and Steven A. Kimmel of counsel), for defendant/counterclaim plaintiff-respondent.

REINALDO E. RIVERA, J.P. GLORIA GOLDSTEIN PETER B. SKELOS RUTH C. BALKIN, JJ.

Before: Rivera, J.P., Goldstein, Skelos and Balkin, JJ.


Ordered that the judgment is affirmed, with costs.

Upon review of a determination rendered after a nonjury trial, this Court's authority "is as broad as that of the trial court, [and this Court may] render the judgment it finds warranted by the facts, taking into account in a close case `the fact that the trial judge had the advantage of seeing the witness'" ( Northern Westchester Professional Park Assoc., v Town of Bedford, 60 NY2d 492, 499, quoting York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 133-134; see Vizzari v Hernández, 1 AD3d 431, 431-432). We discern no reason to disturb the Supreme Court's determination, inter alia, imposing a constructive trust in favor of the plaintiff upon one half of the interest in the subject property currently deeded to the defendant ( see Simonds v Simonds, 45 NY2d 233, 241; Sharp v Kosmalski, 40 NY2d 119, 121; Ruiz v Meloney, 26 AD3d 485, 486; Nastasi v Nastasi, 26 AD3d 32, 38; Eickler v Pecora, 12 AD3d 635, 636; Williams v Lynch, 245 AD2d 715, 716-717).


Summaries of

Nelson v. McKay

Appellate Division of the Supreme Court of New York, Second Department
Jun 26, 2007
41 A.D.3d 802 (N.Y. App. Div. 2007)
Case details for

Nelson v. McKay

Case Details

Full title:JAMES NELSON, Appellant, v. PATRICIA MCKAY, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 26, 2007

Citations

41 A.D.3d 802 (N.Y. App. Div. 2007)
837 N.Y.S.2d 589

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