Resolution Trust Corp. v. Lyons

—Order, Supreme Court, Bronx County (Alan Saks, J.), entered June 16, 1999, which, inter alia, granted defendant Karen Borca’s motion to confirm the Referee’s report and to direct disbursement of surplus funds deposited with the Commissioner of Finance of the City of New York, unanimously affirmed, without costs.

Contrary to- the contentions of defendants-appellants, the record does not contain evidence of an express or implied agreement between them and defendant Borca that the subject property was to be “ “held, given or transferred as security’ ” (Teichman v Community Hosp., 87 NY2d 514, 520, quoting James v Alderton Dock Yards, 256 NY 298, 303).

Nor can appellants establish an equitable lien based on the theory that the mortgage payments made by them on defen*665dant Borca’s behalf constituted a “down payment” on a contract to purchase the property, where no proof of an agreement to sell the property to them was established. In a pre-foreclosure action by them to impose a constructive trust, they characterized these payments merely as a loan. Accordingly, appellants are not entitled to an equitable lien on the property and the Referee properly disallowed appellants’ claims to the surplus funds from the sale of the property in foreclosure. Concur— Sullivan, P. J., Williams, Ellerin, Wallach and Friedman, JJ.