CPLR § 6514 Motion for cancellation of notice of pendency
(b) Discretionary cancellation
The court, upon motion of any person aggrieved and upon such notice as
it may require, may direct any county clerk to cancel a notice of
pendency, if the plaintiff has not commenced or prosecuted the action
in good faith.
CPLR R. 3211(a)(7) pleading fails to state a cause of action
Maiorino v Galindo, 2009 NY Slip Op 06123 (App. Div., 2nd, 2009)
Inasmuch as the motion was made pursuant to CPLR 3211(a)(7), the
court must accept all facts as alleged in the complaint to be true and
accord the plaintiff the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; Smith v Meridian Tech., Inc., 52 AD3d 685,
686). In general, it may be appropriate to impose a constructive trust
in situations " [w]hen property has been acquired in such circumstances
that the holder of the legal title may not in good conscience retain
the beneficial interest'" (Sharp v Kosmalski, 40 NY2d 119, 121, quoting Beatty v Guggenheim Exploration Co.,
225 NY 380, 386). The necessary elements for the imposition of a
constructive trust are: (1) a confidential or fiduciary relationship;
(2) a promise; (3) a transfer in reliance on that promise; and (4)
unjust enrichment (see Sharp v Kosmalski, 40 NY2d at 121; Pereira v Glicker, 61 AD3d 948; Nastasi v Nastasi, 26 AD3d 32,
37). Here, the complaint does not adequately plead a cause of action to
impose a constructive trust on the Bethpage property. While there was a
confidential relationship between the plaintiff and Galindo as 50%
shareholders in Demo, and Galindo and Madia may have been unjustly
enriched by the alleged diversion of Demo's assets, there was no
promise to either the plaintiff or Demo with respect to the Bethpage
property and no transfer of that property in reliance on any promise.
Indeed, there is no allegation that either the plaintiff or Demo had
any preexisting interest or expectation of an interest in the Bethpage
property. The complaint contains the plaintiff's acknowledgment that
Madia borrowed the money using his own credit to pay for the purchase
of the property, and it is not alleged that any assets of Demo or
personal funds of the plaintiff were used in the purchase of the
property (see Gargano v V.C. & J. Constr. Corp., 148 AD2d 417, 418—419).
Inasmuch as the cause of action seeking to impose a constructive
trust on the Bethpage property was the only cause of action in the
complaint that would affect the title to, or the possession, use or
enjoyment of that property, that branch of the defendants' motion which
was to cancel the notice of pendency should have been granted (see CPLR 6514[b]; Shkolnik v Krutoy, 32 AD3d 536, 537; Distinctive Custom Homes Bldg. Corp. v Esteves, 12 AD3d 559).
The bold is mine.