This action sounding in equity arises from the failure of a personal and intimate relationship between the parties to this suit. Following the ultimate souring of that relationship, Plaintiff retained counsel to prosecute his claim for the imposition of a constructive trust upon the real property located at 20 Sea Cliff Street, Islip Terrace, Town of Islip, New York. Defendant, through counsel, seasonably answered and interposed several affirmative defenses together with a counterclaim demanding recovery of monies that she alleged to have loaned to him, all for his own use and behoof. The trial of this cause commenced on May 5, 2010 and continued on various days until its conclusion on February 1, 2011. After careful consideration of all of the testimonial evidence and the exhibits introduced at trial and having been afforded the opportunity to evaluate and assess the demeanor and credibility of the witnesses who appeared herein, the Court makes its ultimate determination as hereinafter set forth. [*2]

During all relevant times herein, Plaintiff and Defendant were and continue to be employed by the Federal Aviation Administration ("FAA"). Plaintiff is a native New Yorker while Defendant is a native of the state of California. The parties became acquainted with one another at an FAA training seminar in September of 1998, at which time Plaintiff was estranged and later divorced from his spouse while Defendant was divorced. They commenced a "long distance" relationship which intensified in a very short period of time. The parties became engaged to be married on February 12, 2000 though their relationship rapidly deteriorated to the point where the engagement was terminated by Defendant on January 25, 2002.

Plaintiff tried, albeit unsuccessfully, to obtain a job transfer to California; however, Defendant was able to secure a transfer to an FAA facility in New York. While awaiting transfer and at Plaintiff's persistent urging, Defendant sold her residence in California, netting the sum of $ 18,393.00 and permitted him to "shop" for a home for her to purchase on Long Island, to be in close proximity to her new place of employment. Defendant attempted to set parameters for a home, most prominent among them that the cost not exceed $ 165,000.00 and that there be a legal accessory apartment to help offset the monthly costs. Plaintiff worked with a realtor and provided information on properties to Defendant, most of which were priced far above the range requested by Defendant. Ultimately, a realtor found the property at 20 Sea Cliff Street in Islip Terrace, which had two legal apartments, the rent from which could be utilized to set off her mortgage payment.

Defendant, again acting at Plaintiff's urging, retained his matrimonial attorney to represent her in the purchase of the property. The Contract of Sale reflected Defendant as sole purchaser of the property. According to Plaintiff, he was omitted from the Contract of Sale as a purchaser because of his ongoing and acrimonious divorce proceeding though he stated that Defendant agreed to put him into fee title, a bare assertion that is vigorously disputed by Defendant. The transaction closed on August 3, 2000 and the parties moved into the property on or about September 1, 2000.

The funds for the down payment of $ 45,000.00 were provided to Defendant through a loan arranged by Plaintiff from his sister, Milagros Burg. Defendant stated that "Joe kept pushing this $ 45,000.00 loan" as his sister wanted to invest in property; Defendant had already lost her interest in two houses from past relationships and claimed she wanted no such partnership. She agreed to accept the loan because it would be interest free for the first three years and would obviate the need for private mortgage insurance. Though there were documents received into evidence which purported to be e-mails from Plaintiff's sister, outlining the terms of the loan, Defendant testified credibly that she had never seen them until after this action was commenced and that they were most likely fabricated by Plaintiff. The evidence adduced at trial demonstrated that as the result of a refinance transaction in early 2005, Defendant repaid that loan in full, with interest and without any monetary contribution thereto by Plaintiff.

Defendant stated that she was moving to New York with her son and had no intention, at that time, of residing with Plaintiff. However, Plaintiff did ultimately move in with her when she actually closed the sale of the house. Although Plaintiff stated that he never agreed to pay rent and that no demand for rent was ever made, Defendant stated that when Plaintiff moved in, he [*3]offered to pay rent of $ 950.00 per month to her, stating that it was less than what he was paying for his apartment. Since the parties were engaged to be married, she allowed him to move in and accepted his offer to pay rent. Defendant asserted that Plaintiff failed to pay her, due in part to a substantial wage attachment for child support together with his court ordered obligation to pay carrying charges on the residence of his former spouse and children.

Thereafter, Defendant undertook to perform repairs and renovations upon the property, specifically upon the two apartments. Plaintiff insisted that he performed most of the work on the property for what he claimed to be the joint benefit of the parties while Defendant stated that he completed perhaps ten percent of the work, spending most of his time working on his boat, riding his motorcycle and ATV, bow hunting and deer hunting with his friend Steve. Plaintiff did produce a witness in rebuttal who testified to certain electrical work that was performed over a course of no more than two days, some of which was done by Plaintiff. However, Plaintiff adduced no other proof, aside from his self-serving statements, as to what work, if any, he performed on the house. Defendant testified that on no less than ten occasions, Plaintiff would offer to do work on the house and then refuse, stating "Well, it's not my house and if you put me on the deed, I might be more willing to help" or words to that effect.

The Plaintiff demands the imposition of a constructive trust upon the property at 20 Sea Cliff Street, asserting that Defendant has, since prior to the purchase of the property, orally promised on many occasions between 2000 and 2007, to convey joint fee title thereto to him as a tenant in common, asserting that he is entitled to a one half fee interest therein. Defendant vociferously denies that she ever made any promise, express or implied, to place Plaintiff in title to the property. Indeed, Defendant avers that after she commenced summary proceedings against Plaintiff, he stated to her that he had learned about constructive trusts at the library, that he was in dire need of money and that she could "pay me or pay a lawyer."

Defendant has interposed a counterclaim, demanding a money judgment in excess of $ 150,000.00, the basis being monies that she loaned to Plaintiff and subsequently advanced for payment of his personal obligations (child support, expenses related to his divorce and ex-spouse's enforcement proceedings, legal fees for three attorneys related to his divorce, credit card bills, ATV and boat loans) as well as for large bills that he incurred on her credit cards together with rent and utilities that she claimed to be due and owing from him.

A constructive trust is a creature of equity and, in the scholarly words of Judge Cardozo as enunciated in the matter of Beatty v. Guggenheim Exploration Company 225 NY 380 (1919), abrogated on other grounds Israel v. Chabra 12 NY3d 158 (2009), "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." 225 NY at 386. In order for a constructive trust to be imposed, the proponent must establish the existence of four separate and distinct elements. These elements are (1) a fiduciary or confidential relationship; (2) a promise; (3) a transfer in reliance upon the promise; and (4) unjust enrichment accruing to the transferee or putative trustee, Sharp v. Kosmalski 40 NY2d 119 (1976), Bankers Security Life Insurance Society v. Shakerdge 70 AD2d 852 (1st Dept. 1979), Iwanow v. Iwanow 39 AD3d 476 (2nd Dept. 2007). The equitable [*4]doctrine of constructive trust is not a static one but rather is an extremely fluid concept, capable of being applied to all facets of a transaction so as to avoid working any inequity or injustice to the parties, Simonds v. Simonds 45 NY2d 233 (1978). It is axiomatic, however, that in order for a constructive trust to lie, the proponent thereof must conclusively prove the existence of each and every one of the four elements.

In a matter such as the case at bar, it is the province and indeed the obligation of the trial court to both assess and determine the issues of credibility, Morgan v. McCaffrey, 14 AD3d 670 (2nd Dept. 2005), Matter of Liccione v. Michael A. 65 NY2d 826 (1985). In a civil matter the burden of proof rests upon the proponent of a claim/counterclaim to plead and prove all of the elements of such claim by a fair preponderance of the credible, relevant, material and admissible evidence, Prince-Richardson On Evidence ,§ 3-210; Torem v. 564 Central Avenue Restaurant Inc. 133 AD2d 25 (1st Dept. 1987).

The Court finds that both parties have made some mis-statements of varying gravity. Both Plaintiff and Defendant admittedly mis-stated their relationship on their life insurance beneficiary designations at their place of employment. Moreover, both parties admittedly collected cash rent from tenants in the property which each failed to declare as income on their respective tax returns in the year the same was earned. However, during the pendency of this action, Defendant filed amended tax returns upon which she reported the income and paid the tax due thereon though no such assertion or showing was made by Plaintiff.

However, the Court is grievously disturbed by what Plaintiff has demonstrated to be a regular and continuing course of conduct contained within a myriad of statements that are materially false and intentionally misleading. In that regard, the Court finds that Plaintiff has offered willfully false testimony on more than one occasion, during this trial and before other tribunals, all of which substantially and negatively impacts his credibility as a witness. By way of example, Defendant's Exhibit D, received into evidence, is an Affidavit dated July 6, 2001. It was prepared by Plaintiff on his computer, sworn to before a notary public and then submitted to the Supreme Court, Suffolk County under index no. 1999-20525 with the specific intention that the Justice presiding over that cause rely upon the truth of the statements therein. In his sworn testimony in this proceeding, Plaintiff conceded, on cross-examination, that certain material statements therein were false and that he was fully aware of the falsity of those statements at the time he swore to the truth of them. In addition, Plaintiff testified falsely with respect to his claimed involvement in one of the refinance transactions affecting the property, stating that he was a co-applicant for and co-obligor upon that loan, going so far as to produce Plaintiff's Exhibit 3, a copy of an application acknowledgment from Countrywide Home Loans upon which Plaintiff's name had been added in a handwriting that was clearly different from that on the remainder of the document (in fact, all of the evidence adduced ineluctably demonstrates that Defendant was the sole applicant and obligor in each of the three mortgage transactions affecting the property at issue herein). Plaintiff also attempted to mislead this Court by falsely testifying that he was the sole obligor upon a promissory note in the amount of $ 45,000.00 in favor of his sister. As though this was not enough, Plaintiff boldly testified that he paid half of all household expenses; this was shown to be untrue, both by way of Defendant's uncontroverted documentary evidence as well as prior sworn testimony that Plaintiff offered in an action in Suffolk County District Court, index no. ISLT-07-1047. The record is replete with a [*5]plethora of instances of initially questionable testimony offered by Plaintiff that has been overwhelmingly controverted by other objective evidence adduced herein. As a result of Plaintiff's persistent prevarication on the record, this Court is constrained to find that the maxim of "falsus in uno, falsus in omnibus" is regrettably applicable here, with respect to the testimony offered by him and hence, he is deemed to be completely unworthy of belief. This Court, therefore, declines to credit any of Plaintiff's testimony herein, premised upon his continuing cavalier disregard for the truth.

In the matter that is sub judice and affording Plaintiff the benefit of every permissible inference, it is clear from the record that Plaintiff has successfully proven the first element, that of the existence of a confidential relationship. It is undisputed that the parties were involved in an intimate relationship with each other and were engaged to be married at some point. That having been said, proof of the remaining three elements (promise, transfer and unjust enrichment) is far more elusive. The only proof adduced as to a promise has been found in Plaintiff's sworn testimony in open court. Moreover, a search of the record fails to uncover any other admissible proof of a promise, a transfer in reliance or of any unjust enrichment. Failure to establish, by a fair preponderance, all of the elements of a constructive trust causes the claim thereof to fail, Onorato v. Lupoli 135 AD2d 693 (2nd Dept. 1987).

Turning to Defendant's counterclaim, it is the opinion of this Court that she has successfully and conclusively established her entitlement to judgment in her favor for monies that she advanced or otherwise loaned to Plaintiff which have not been repaid. Plaintiff has asserted, albeit without any admissible proof, that he has paid Defendant and owes her nothing. Indeed, in the summary proceeding in Suffolk County District Court, the certified transcript thereof shows that he testified under oath that his "payments" to Defendant were not made in cash but rather they were in the form of rental income derived from tenants

residing in the apartments, falsely asserting to that tribunal that this was so because he alone had constructed the apartments. Defendant has demonstrated that she is owed, from plaintiff, the sum of $ 155,156.58, for which she is entitled to judgment, together with statutory interest thereon at the rate of 9% per annum (CPLR § 5004) to be computed thereon from February 13, 2007, the date of detention thereof.

It is, therefore,

ORDERED that Plaintiff's claim and causes of action shall be and the same are hereby dismissed in their entirety; and it is further

ORDERED that if a Notice of Pendency has been recorded, then the Clerk of Suffolk County, upon payment of the proper fees, shall cause the same to be vacated and discharged of record; and it is further

ORDERED that Defendant SHARON OLDENBURG, residing at 20 Sea Cliff Street, Islip Terrace, New York 11752 recover of Plaintiff JOSEPH DELGADO, residing at 148 [*6]Springdale Drive, Ronkonkoma, New York 11779 the principal sum of $ 155,156.58 with interest thereon at 9% per annum from February 13, 2007 upon which she shall have execution; and it is further

ORDERED that Defendant's counsel shall, within twenty one (21) days from the date hereon, submit a judgment for entry consistent with the provisions hereinabove set forth.

This shall constitute the decision and order of this Court.

Dated: February 8, 2011

Riverhead, New York

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HON. JEFFREY ARLEN SPINNER, J.S.C