After inquest held on February 3, 2009 and based upon the credible testimony and admissible evidence adduced therein, the court finds as follows:

I. INTRODUCTION

This is an action commenced by plaintiff Svetlana Shrifter against defendant Alexander Goldman seeking, inter alia, equitable relief, reformation of a deed, imposition of a constructive trust upon real property, and money damages related to premises known as unit 18G, located at 25-40 Shore Boulevard, Astoria, New York. Upon defendant's default in answering, plaintiff moved for a default judgment. By order of this court dated December 16, 2008 (Lane, J.), plaintiff's motion for a default judgment was granted, and this matter was set down for an Inquest, which Inquest was held on February 3, 2009. At Inquest, Svetlana Shrifter testified and documentary evidence was submitted in support of the claim. Pursuant to the Verified Complaint, in plaintiff's first cause of action she seeks "imposing a constructive trust upon one-half of premises known as unit 18G, located at 25-40 Shore Boulevard, Astoria, New York and known as Block 905, Lot 1350; or in the alternative, reforming the deed to the premises.....to reflect the joint ownership by Plaintiff and Defendant together with interest, and the cost and [*2]disbursements of this action" and in the second cause of action she seeks "partitioning and selling the premises by and under direction of this court, and dividing the proceeds of this sale, after paying the costs and expenses thereof, and after satisfaction of the liens of the mortgage and HELOC, among the owners thereof, together with interest, and cost and disbursements of this action."

II. FINDINGS OF FACT

Since the month of May 1994, defendant and plaintiff resided together in an intimate relationship and planned to purchase realty where they both would reside, get married, and raise children. In 1995, they entered into a contract to purchase a condominium premises known as unit 18G, located at 25-40 Shore Boulevard, Astoria, New York and known as Block 905, Lot 1350 (hereinafter to as "the premises" or "condominium"). The purchase price of the property was $154,000.00. Although plaintiff's name was not on the deed, she contributed $20,000.00 or one-half of the down payment and was a co-mortgagor on a $125,000.00 mortgage by JP Mortgage Chase Manhattan Bank. Defendant promised plaintiff that he would transfer title to their joint names after the purchase.

On July 21, 1998, a child was born out of the relationship between plaintiff and defendant. From 1997 until January 2003 plaintiff made all payments for the premises including mortgage, maintenance, and utilities. Defendant refused to fulfill his promise to plaintiff to marry her and to transfer ownership of the condominium to their joint name. In January 2003, plaintiff moved from the condominium with her child and ceased making mortgage payments. Thereafter, defendant defaulted in paying the mortgage. In December 2007, plaintiff was served with a Summons and Complaint in a foreclosure action related to the mortgage on the condominium. Defendant refused to contribute any funds to reinstate the mortgage with the bank, resulting in or about February 11, 2008 plaintiff paying JP Morgan Chase Manhattan Bank $13,026.42 in order to reinstate the mortgage and avoid foreclosure. Since February 2008, through the date of this hearing, the plaintiff has made all mortgage payments for the premises. In addition, defendant obtained a $50,000.00 Home Equity Line of Credit none of the proceeds of which have been delivered to plaintiff.

The testimony and documentary evidence submitted at Inquest established that plaintiff made mortgage payments of $13,026.42 for the period of July 2007 to February 2008 and $10,329.00 for the period of March 2008 through January 2009 for a total of $23,355.64.

Additional facts are stated hereinafter.

Plaintiff has sufficiently established the first element of a constructive trust, ie. that of a confidential or fiduciary relation. Plaintiff presents evidentiary proof that she had an intimate relationship with the defendant beginning in May 1994, and that, in July 1998 she gave birth to their child, Shelly Goldman.

Plaintiff has sufficiently established the second element of a constructive trust, ie. a promise. Plaintiff presents evidentiary proof that prior to the closing, the defendant made a promise to plaintiff that he would transfer title from just his name, as it was at the closing, to both of their names soon thereafter the closing.

Plaintiff has sufficiently established the third element of a constructive trust, ie. a transfer in reliance on a promise. The Appellate Division, Second Department has held that: "[i]n order to establish that there was a transfer in reliance on the promise, it must be shown that the party seeking to impose the constructive trust had some interest in the property prior to obtaining the promise that the property would be conveyed, and that this interest was parted with in reliance on the promise" (Bontecou v. Goldman, 103 AD2d 732 [2d Dept 1984][internal citations omitted]; see also, Kaufman v. Torkan, 2008 NY Slip Op 4838 92008]; Martin v. Martin, 169 AD2d 821 [2d Dept 1991]; Schwab v. Denton, 141 AD2d 714 [2d Dept 1988]; Scivoletti v. Marsala, 97 AD2d 401 [2d Dept 1983]). However, the law of constructive trusts is not limited to situations of reconveyance of property situations, but is also applicable where the person seeking to impress the trust has no prior interest in the property, "but does contribute funds, time or effort to the property in reliance on a promise to share in some interest in it" (Lester v. Zimmer, 147 AD2d 340 [3d Dept 1989]; Henness v. Hunt, supra]). In the instant case, plaintiff has indeed demonstrated that she has contributed funds to the property. Plaintiff established that she played a financial role in purchasing the home, in that she contributed $20,000.00 of her savings toward the purchase of the home. Plaintiff also testifies that she paid items such as the mortgage on the house, and was the sole payer of the mortgage from 1997 until January 2003. Accordingly, plaintiff has satisfied the third element necessary for the imposition of a constructive trust.

Plaintiff has sufficiently established the fourth element of a constructive trust, ie. unjust enrichment. As the Court has determined that plaintiff contributed funds to the property itself, the defendant has been unjustly enriched. Plaintiff provides proof that she partially purchased the property. "Enrichment alone will not suffice to invoke the remedial powers of a court of equity. Critical is that under the circumstances and as between the two parties to the transaction the enrichment be unjust." (McGrath v. Hilding, 41 NY2d 625 [1977]). Accordingly, plaintiff has satisfied the fourth element necessary for the imposition of a constructive trust. Therefore, the court orders that a constructive trust is impressed upon the premises described in the complaint and directs that plaintiff is declared to be a tenant in common with the defendant with an undivided one-half interest in the subject property.

B. 2nd Cause of Action for Partition and Accounting

Pursuant to section 901 of the RPAPL "a person holding

and in possession of real property as joint tenant or tenant in common ...... may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made [*4]without great prejudice to the owners." An action in partition may be maintained only by one who has legal title to the realty (McKenna v. Meehan, 248 NY 206 [1928]; Harvey v. Metz, 271 AD 788 [2d Dept 1946]). Here, plaintiff seeks to establish the requisite legal title by reason of the claimed equitable title of the plaintiff (see, Foreman v. Foreman, 251 NY 237 [1929]); Sinclair v. Purdy, 235 NY 245 [1923]) as well as to have a partition. Notwithstanding the fact that plaintiff does not have legal title to the premises, it is permissible for her to join a cause of action for the enforcement of a trust or similar equitable relief with a cause of action to partition the property after legal title has been vested in her, as an aggrieved party, by the judgment of the court (Zim v. Cohen, 221 App Div 341, [2d Dept 1927]; see also, Gifford v. Whittemore, 4 AD2d 379 [3d Dept 1957]). The issues joined must be tried and determined in this action (CPLR 601; see also, McKenna v. Meehan, supra).

This court having impressed a constructive trust upon the premises and ordered that plaintiff is vested in title as tenant in common with the defendant with an undivided one-half interest in the subject property, the court determines that plaintiff is entitled to maintain an action for partition and sale of the property as a matter of right (RPAPL Article 9; 24 NY Jur 2d, Cotenancy and Partition, section 131; Tedesco v. Tedesco, 269 AD2d 660 [3d Dept 2000]).

Because a partition is equitable in nature, necessarily incident thereto is an accounting so that the parties' respective rights to a share of the proceeds may be determined (Tedesco v. Tedesco, supra; Deitz v. Deitz, 245 AD2d 638 [3d Dept 1997]).

Accordingly, based upon plaintiff's testimony, and upon the admitted documentary evidence, the court finds that plaintiff made mortgage payments of $13,026.42 for the period of July 2007 to February 2008 and of $10,329.00 for the period of March 2008 through January 2009, for a total of $23,355.64.

C. Attorney fees

Plaintiff's demand for an award of counsel fees, which was interposed only in its moving papers, is denied pursuant to CPLR 3215(b); 96 Pierrepont, LLC v. Mauro, 19 AD3d 667 (2d Dept 2005)(holding that pursuant to CPLR 3215(b), a default judgment may not "exceed in amount or differ in the [kind of relief] from that demanded in the complaint). Moreover, it is well-settled that attorneys' fees are considered an incident of litigation and, unless authorized by statute court rule or written agreement of the parties, are not recoverable (Hooper Associates, LTD v. AGS Computers, 74 NY2d 487, 491 [1989]).

Accordingly, after inquest, plaintiff is awarded

judgment:

a. impressing a constructive trust upon the premises known as unit 18G, located at 25-40 Shore Boulevard, Astoria, New York and known as Block 905, Lot 1350 and vesting title to plaintiff as tenant in common with the defendant with an undivided one-half interest in the subject property;

b. for partition of the premises to the extent that a sale shall be ordered upon confirmation of the report of the referee to be appointed in the order to submitted hereon. The referee shall ascertain and report the rights, shares, and interests of the [*5]parties to this action in the property described in the complaint and of which partition is sought, and an abstract of the conveyances by which the same are held, and to report whether the property, or any part thereof, is so circumstanced that a partition thereof cannot be made without great prejudice to the owners. Such referee shall report on and take an account of the rents and/ or profits, if any, collected and distributed by any of the parties hereto, take proof of the capital improvements, repairs, taxes, insurance and all other expenditures made in connection with maintaining the value of said property by either party. If the referee determines that a sale of said property, or any part thereof, is necessary, then he or she shall ascertain whether there is any creditor not a party to this action who has a lien on the undivided share or interest of any party hereto, pursuant to RPAPL 913, and report to the Court with all convenient speed the name of each creditor whose lien is satisfactorily proved before him or her, the nature and extent of said lien, the date thereof and the amount due or to become due thereupon. In addition, the order of reference will refer to, and said referee shall determine the issues as follows:

1. Whether defendant owes plaintiff any money for the maintenance, upkeep of the premises and for mortgage payments made;

2. Whether defendant received money from a home equity mortgage;

3. The accounting between the parties necessary to establish their interest in the net proceeds of any sale to be had.

The County Clerk is directed to enter judgment accordingly.

Submit an order of reference consistent with this memorandum decision.

A courtesy copy of this memorandum decision is being mailed to counsel for plaintiff.

.........................

Howard G. Lane, J.S.C.