| DeLaurentis v DeLaurentis |
| 2008 NY Slip Op 00445 [47 AD3d 750] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Jeanne DeLaurentis, Appellant, v Vito F. DeLaurentis, Jr.,Respondent. |
—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Leonard M. Cascone and Andrew M. Lauri ofcounsel), for respondent.
In an action, inter alia, to impose a constructive trust upon certain real property, the plaintiffappeals, as limited by her brief, from so much of an undated order of the Supreme Court, SuffolkCounty (Sgroi, J.), as granted that branch of the defendant's motion which was to dismiss thecause of action to impose a constructive trust as time-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff seeks, inter alia, to impose a constructive trust upon real property located inHampton Bays (hereinafter the subject property). The defendant is the plaintiff's brother. OnFebruary 21, 1974, the parties' father, Vito F. DeLaurentis, Sr. (hereinafter Vito, Sr.), and hiswife Marie, transferred ownership in the subject property, by deed, to the defendant. The plaintiffclaimed that Vito, Sr. transferred the subject property to the defendant with the specificinstruction that a 50% ownership interest in the property belonged to her, which was to be held intrust by the defendant and distributed to her upon the death of Vito, Sr. On the date of the transferof the subject property to the defendant, the defendant caused a mortgage to be given on thesubject property in the amount of $20,000 without the plaintiff's knowledge or permission. Sincethe death of Vito, Sr. on July 31, 1995 the defendant has remained in exclusive possession of thesubject property without the plaintiff's permission, allegedly in violation of Vito, Sr.'s specificinstruction that the plaintiff's 50% ownership interest in the subject property be distributed to herupon his death.[*2]
A cause of action to impose a constructive trust orequitable lien is subject to a six-year limitations period (see CPLR 213 (1); Mazzonev Mazzone, 269 AD2d 574, 574-575 [2000]) that "commences to run upon the occurrence ofthe wrongful act giving rise to a duty of restitution" (Ponnambalam v Sivaprakasapillai, 35 AD3d 571, 574 [2006][internal quotation marks omitted]; see Kitchner v Kitchner, 100 AD2d 954 [1984]). "Adetermination of when the wrongful act triggering the running of the Statute of Limitationsoccurs depends upon whether the constructive trustee acquired the property wrongfully, in whichcase the property would be held adversely from the date of acquisition (see Augustine vSzwed, 77 AD2d 298, 300-301; Bey Constr. Co. v Yablonski, 76 AD2d 875), orwhether the constructive trustee wrongfully withholds property acquired lawfully from thebeneficiary, in which case the property would be held adversely from the date the trusteebreaches or repudiates the agreement to transfer the property (see Augustine v Szwed,[77 AD2d] at 301)" (Maric Piping v Maric, 271 AD2d 507, 508 [2000] [internalquotation marks omitted]; see Sitkowski v Petzing, 175 AD2d 801, 802 [1991]).
Here, the action was commenced on September 13, 2006. The alleged wrongful act on whichthe cause of action to impose a constructive trust was predicated occurred as early as February21, 1974, when the defendant caused a mortgage to be given on the subject property in theamount of $20,000, without the plaintiff's knowledge or permission, and no later than July 31,1995, the date of Vito, Sr.'s death. In either case, the cause of action to impose a constructivetrust is time-barred pursuant to the six-year statutory limit set forth in CPLR 213 (1). Spolzino,J.P., Ritter, Miller and Dickerson, JJ., concur.