¶1In an action, inter alia, to impress a constructive trust and for a declaration that the plaintiffs are the sole owners of a certain parcel of real property located in Suffolk County, plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated July 13,1983, which denied their motion for a new trial, and (2) a judgment of the same court, entered September 1,1983, which was in favor of the defendant and against them.
¶2Appeal from the order dismissed (see, Matter of Aho, 39 NY2d 241, 248).
¶3Judgment modified, on the law, by adding a provision declaring that the plaintiffs are not the sole owners of the premises in question. As so modified, judgment affirmed.
¶4Respondent is awarded one bill of costs.
¶5Upon a review of the record, we agree with the conclusion of Trial Term that plaintiffs have failed to sustain their burden of proving the requisite elements of a constructive trust (see, Sharp v Kosmalski, 40 NY2d 119, 121). Inasmuch as there was a failure of proof on their part, plaintiffs cannot prevail upon the *778merits of this action. However, the rights of the parties should still have been declared by the trial court (see, Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901). Gibbons, J. P., O’Connor and Lawrence, JJ., concur.