Shanley v. Crisafulli , 739 N.Y.S.2d 308 ( 2002 )

Appeal and cross appeal from an order of Supreme Court, Oswego County (McCarthy, J.), entered January 30, 2001, which, inter alia, denied defendants’ motion to dismiss the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision at Supreme Court (McCarthy, J.). We add only that, in addition to the issue of fact found by the court, we find a fhrther issue of fact with respect to the existence of an equitable lien based on the reliance theory proposed by plaintiffs. “An equitable lien may be imposed on property where one in a confidential relationship with the owner has expended money for improvement of the property based on a promise to convey, reimburse or grant a lesser interest in the property” (Johnston v Martin, 183 AD2d 1019, 1020; see, Scivoletti v Marsala, 61 NY2d 806). There is sufficient evidence to warrant a hearing under CPLR 3212 (c) with respect to whether plaintiff Gerard H. Shanley and Daniel Crisafulli (defendant), as the only members of plaintiff Westside Development, LLC (Westside), had a confidential relationship; whether Shanley expended money for the improvement of the landlocked property at issue when he expended money toward the purchase of surrounding properties to enhance the value of the landlocked property; and whether the money was expended by Shanley in reliance on defendant’s promise to convey the landlocked property to Westside. Present — Pine, J.P., Wisner, Scudder, Burns and Gorski, JJ.