Appeal from an order of the Supreme Court (Teresi, J.), entered September 11, 2001 in Albany County, which granted defendants’ motion for summary judgment dismissing the complaint.
In October 1994, plaintiff retained defendants to represent him in a divorce action against his wife. One of the disputed issues in the action was ownership of certain real property titled solely in the name of plaintiff’s wife and known as the Ridge-field Drive property. Plaintiff claimed an equitable interest in this property based upon his having paid off its mortgage in reliance on his wife’s promise to name him a co-owner on the deed. Well after commencement of the divorce action, and unknown to plaintiff, his wife remortgaged the Ridgefield Drive property. In September 1997, Supreme Court (Maney, J.), granted plaintiff a divorce and distributed the parties’ property (Ehlinger v Ehlinger, 174 Misc 2d 344 [1997]). Based on its finding that plaintiff was entitled to a constructive trust upon the Ridgefield Drive property, the court ordered his wife to either repay him $161,595.06, the net amount he invested in the property, or convey her interest in the property to him. However, his wife’s actions in mortgaging the property before the divorce, filing for bankruptcy immediately afterward and precipitating a foreclosure precluded plaintiff from recovering the distributive award.
In September 1999, plaintiff commenced this legal malpractice action alleging that the failure of his counsel, defendant Elaine M. Pers, to seek pendente lite relief in the divorce action or file a notice of pendency as to the Ridgefield Drive property constituted negligence and caused him to lose the 1997 distributive award. Defendants then moved for summary judgment dismissing the complaint based on the affidavits of their counsel and Pers describing her representation of plaintiff as competent and opining that neither pendente lite relief nor a notice of pendency based upon a claim of a constructive trust would have been a legally viable remedy before the divorce judgment was issued. Finding that the lack of a demonstrable threat to encumber the property would have precluded a pendente lite restraint against plaintiffs wife and that it was “unlikely” that plaintiff would have been entitled to the imposition of a constructive trust, Supreme Court granted defendants’ motion and dismissed the complaint, prompting this appeal by plaintiff.
Upon our review of the record, we agree that defendants’ submissions were sufficient to show that Pers’s decision not to pursue pendente lite relief did not depart from the applicable standard of care (see Beltrone v General Schuyler & Co., 223 AD2d 938, 939 [1996]). In this regard, Pers’s affidavit is not conclusory (cf. Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 284 [1999]), but rather sets forth a reasonable legal strategy and accurately opines that a pendente lite restraint could not have been obtained in the absence of a threat by plaintiffs wife to dissipate or encumber the property (see Strong v Strong, 142 AD2d 810, 812 [1988]; cf. Maillard v Maillard, 211 AD2d 963, 964 [1995]). Plaintiffs responding papers fail to raise a question of fact as to pendente lite relief because he submits no expert affidavit describing the applicable standard of care or opining that a pendente lite restraint could have been obtained (see e.g. Zeller v Copps, 294 AD2d 683, 684 [2002]).
We reach a different conclusion, however, with regard to Pers’s failure to file a notice of pendency before plaintiffs wife encumbered the Ridgefield Drive property. Defendants’ moving papers are insufficient to show that this failure was not malpractice or the proximate cause of plaintiffs damages. Pers’s affidavit simply does not address the absence of a notice of pendency. While defendants’ counsel avers that “[i]t is * * * well settled that plaintiff had no right to obtain a lis pendens when he clearly had no legal interest in the property,” this opinion is conclusory and patently inaccurate because there is no dispute that plaintiff claimed an equitable interest in the Ridgefield Drive property and sought the imposition of a constructive trust. Since actions seeking to impose a constructive trust on real property “obviously affect[ ] title to real property” (Grossfeld v Beck, 42 AD2d 844, 844 [1973]; see Peterson v Kelly, 173 AD2d 688, 689 [1991]), the filing of a notice of
Mercure, J.P., Crew III, Peters and Lahtinen, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants’ motion for summary judgment dismissing the claim based on defendants’ failure to file a notice of pendency; motion denied to that extent; and, as so modified, affirmed.