| Reiner v Jaeger |
| 2008 NY Slip Op 03188 [50 AD3d 761] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Johannes Reiner, Also Known as Jan Reiner,Appellant, v Susan Jaeger, Respondent. |
—[*1] Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, N.Y. (Patrick B. Fifeof counsel), for respondent.
In an action to impose a constructive trust on real property, the plaintiff appeals from anorder of the Supreme Court, Suffolk County (Baisley, J.), dated August 21, 2007, which deniedhis motion to preliminarily enjoin the defendant from, inter alia, evicting him from the subjectproperty and granted the defendant's cross motion to dismiss the complaint as time-barredpursuant to CPLR 3211 (a) (5).
Ordered that the order is affirmed, with costs.
A cause of action to impose a constructive trust is governed by a six-year statute oflimitations and begins to accrue "upon the occurrence of the wrongful act giving rise to a duty ofrestitution and not from the time the facts constituting the fraud are discovered" (Soscia v Soscia, 35 AD3d 841,843 [2006] [internal quotation marks omitted]; see CPLR 213 [1]). Where, as here, theconstructive trustee is alleged to have wrongly acquired the property, the accrual date is deemedto be the date of the alleged wrongful transfer of the property (see DeLaurentis v DeLaurentis, 47AD3d 750 [2008]; Soscia v Soscia, 35 AD3d at 843; Pisciotto v Dries, 306AD2d 262, 263 [2003]; Mazzone v Mazzone, 269 AD2d 574, 575 [2000]). Here, insupport of her cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), thedefendant made a prima facie showing that the action was time-barred by establishing that thecause of action accrued on December 16, 1997, the date she allegedly wrongfully acquired thesubject property solely in her name, rather than as a co-owner with the plaintiff (cf. Matter ofSchwartz, 44 AD3d [*2]779 [2007]; Swift v New York Med. Coll., 25AD3d 686, 687 [2006]). Accordingly, the burden shifted to the plaintiff to "aver evidentiaryfacts establishing that the case falls within an exception to the Statute of Limitations"(Savarese v Shatz, 273 AD2d 219, 220 [2000] [internal quotations marks omitted];see Swift v New York Med. Coll., 25 AD3d at 687).
The plaintiff attempted to meet this burden by contending that the defendant is equitablyestopped from invoking the statute of limitations' defense. Under this doctrine, a defendant isprecluded from invoking a statute of limitations' defense "where it is the defendant's affirmativewrongdoing . . . which produced the long delay between the accrual of the cause ofaction and the institution of the legal proceeding" (Zumpano v Quinn, 6 NY3d 666, 673 [2006] [internal quotationmarks omitted]; see Putter v NorthShore Univ. Hosp., 7 NY3d 548, 552 [2006]; Simcuski v Saeli, 44 NY2d 442,448-449 [1978]; Kamruddin v Desmond, 293 AD2d 714, 715 [2002]). However, becausethe complaint itself does not refer to or even raise any facts alleging conduct to which thedoctrine would be applicable, the plaintiff cannot raise it in opposition to the defendant's motion(see Florio v Cook, 48 NY2d 792 [1979]; Anderson Co. v Devine, 202 AD2d382 [1994]). Moreover, even resolving all inferences in the plaintiff's affidavits in his favor(see Arrington v New York Times Co., 55 NY2d 433, 442 [1982]; Rovello v OrofinoRealty Co., 40 NY2d 633, 635 [1976]; see Davis v CCF Capital Corp., 277 AD2d342, 343 [2000]; Sopesis Constr. v Solomon, 199 AD2d 491, 493 [1993]), the plaintifffailed to establish the applicability of the doctrine. The plaintiff contends only that, based on thedefendant's assertions prior to December 16, 1997, he simply assumed for nearly 10 years,without conducting any due diligence and without any fraudulent conduct on the defendant's partafter December 1997 that could have lulled him into not commencing a timely action, that theparties jointly held title to the subject property (see Putter v North Shore Univ. Hosp., 7NY3d at 552). In the absence of a fiduciary relationship between the parties, which the plaintiffdoes not allege existed, the defendant's conduct did not trigger application of the doctrine (seeZumpano v Quinn, 6 NY3d at 674; Gleason v Spota, 194 AD2d 764, 765 [1993]).
In light of our determination, we need not address the plaintiff's remaining contentions.Fisher, J.P., Ritter, Dillon and McCarthy, JJ., concur.