Jacone v. DeRosa

In an action, inter alia, to impose a constructive trust upon certain real property, the defendants appeal from a judgment of the Supreme Court, Westchester County (Zeck, J.H.O.) dated June 22, 1989, which, after a nonjury trial, (1) is in favor of the plaintiffs and against them in the principal sum of $83,600, (2) grants the plaintiffs an equitable lien, and (3) grants the plaintiffs execution of the lien by public sale, and the plaintiffs cross-appeal from the same judgment on the ground of inadequacy.

Ordered that the judgment is modified, on the law, by deleting the amount awarded to the plaintiffs, to wit, $83,600, and substituting therefor a provision awarding them the amounts expended by them in repairing the defendants’ home and in contributing to maintenance expenses, which amount is to be offset by the amounts paid by the defendants in maintenance expenses; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and determination with respect to those amounts, and for the entry of an appropriate amended judgment.

We agree with the defendants that the court should have awarded the plaintiffs an equitable lien for the amounts that the plaintiffs expended in repairing the defendants’ home while believing that the defendants would deed the house to them, and not for the amount representing the increase of value of the defendants’ home (see, Scivoletti v Marsala, 97 AD2d 401, affd 61 NY2d 806; Petrukevich v Maksimovich, 1 AD2d 786).

We have considered the defendants’ and the plaintiffs’ remaining contentions and find them to be without merit. Thompson, J. P., Brown, Eiber and O’Brien, JJ., concur.