| Matter of Rausman |
| 2008 NY Slip Op 03463 [50 AD3d 909] |
| April 15, 2008 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Emil Rausman, Deceased. ChanaKohav, Respondent; Cindy Rausman Hassan et al., Appellants. |
—[*1] Glenn I. Levin, New York, N.Y., for respondent.
In a proceeding pursuant to SCPA 2205 to compel an estate accounting, Cindy RausmanHassan, Herbert Rausman, and Susan Rausman Abikher appeal (1) from an order of theSurrogate's Court, Rockland County (Berliner, S.), dated January 16, 2007, which granted thepetition and directed them to file an account and a petition for its judicial settlement, and (2), aslimited by their brief, from so much of an order of the same court dated June 12, 2007, as, uponreargument, adhered to the original determination.
Ordered that the appeal from the order dated January 16, 2007 is dismissed, as that order wassuperseded by the order dated June 12, 2007, made upon reargument; and it is further,
Ordered that the order dated June 12, 2007 is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the petitioner.
The petitioner is the closest living relative of Anna Weiser, a resident of Germany who diedin April 1998. Approximately one week after Weiser died, Emil Rausman, a relative of Weiser'spredeceased husband, withdrew more than 1.2 million Swiss Francs from Weiser's account at theSwiss Bank Corporation in Zurich pursuant to a power of attorney she had given to Rausman[*2]and Rausman's brother in 1996. According to its terms, thepower of attorney remained in force after Weiser's death. Rausman and his brother thencommenced a proceeding in Germany to obtain an "inheritance decree" stating that they were thebeneficiaries of a will that Weiser allegedly had drawn but which was never found. In October1999 the Frankfurt Municipal Court dismissed the Rausmans' petition and announced that it"wished to confer" an inheritance decree stating that the petitioner was Weiser's sole heir. TheRausmans' appeal from that decision was dismissed by the Frankfurt Regional Court in January2002 and their appeal from the Regional Court decision to the Frankfurt Higher Regional Courtwas dismissed in March 2004. In June 2004 the Frankfurt Magistrate Court issued an inheritancedecree to the petitioner stating that she is Weiser's sole heir.
Emil Rausman died in December 2000 and letters testamentary were granted to his threechildren (hereinafter the appellants) in March 2001. The petitioner submitted a verified claimdated February 9, 2005 to the estate for the amount that Emil Rausman had withdrawn fromWeiser's account at the Swiss Bank Corporation after Weiser's death, plus interest. In or aboutApril 2006 the petitioner commenced this proceeding pursuant to SCPA 2205 to compel anestate accounting, alleging that she is a creditor of the estate and that the debt "results fromdecedent Emil Rausman's unauthorized liquidation of a Swiss Bank account which petitioner waslegally entitled to and converting the funds for his own use."
The appellants contend that the petitioner's claim against the estate for conversion istime-barred and that the petitioner is thus not a creditor of the estate and has no standing to bringthis proceeding (see Matter of Thomas, 76 Misc 2d 132 [1973]). CPLR 214 (3) providesa three-year statute of limitations for actions for conversion, which "normally runs from the datethe conversion allegedly took place. Where possession is originally lawful, a conversion does notoccur until the owner makes a demand for the return of the property and the person in possessionof the property refuses to return it" (Matter of King, 305 AD2d 683 [2003]; see Stateof New York v Seventh Regiment Fund, 98 NY2d 249, 259-260 [2002]; MacDonnell vBuffalo Loan, Trust & Safe Deposit Co., 193 NY 92, 101 [1908]). Here, there is noindication that Emil Rausman's original withdrawal of the funds from Weiser's Swiss bankaccount pursuant to the power of attorney was unlawful, and the record contains no evidence thata demand or a refusal to return the money from the account was ever made before February 2005.Thus, the appellants failed to establish that the claim for conversion accrued before February2005 and that the petitioner's claim is time-barred. Skelos, J.P., Angiolillo, Leventhal and Belen,JJ., concur.