| Auffermann v Distl |
| 2008 NY Slip Op 08689 [56 AD3d 502] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Marie Auffermann, Appellant, v Gale Distl,Respondent. |
—[*1] Angelyn D. Johnson, Brooklyn, N.Y., for respondent.
In an action, inter alia, to recover damages for unjust enrichment and to impose aconstructive trust upon certain real property, the plaintiff appeals, as limited by her brief, from somuch of an order of the Supreme Court, Queens County (Agate, J.), entered August 2, 2007, asgranted those branches of the defendant's motion which were for summary judgment dismissingthe first and third causes of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the instant motion did not violate the generalproscription against successive summary judgment motions because it was based on depositiontestimony which was not elicited until after the date of a prior order denying an earlier motion forsummary judgment (see Staib v City of New York, 289 AD2d 560 [2001]).
"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' " (Reiner v Jaeger, 50 AD3d 761,761 [2008], quoting Soscia vSoscia, 35 AD3d 841, 843 [2006]). " 'A determination of when the wrongful acttriggering the running of the Statute of Limitations occurs depends upon whether the constructivetrustee acquired the property wrongfully, in which case the property would be held adverselyfrom the date of acquisition . . . or whether the constructive trustee wrongfullywithholds [*2]property acquired lawfully from the beneficiary, inwhich case the property would be held adversely from the date the trustee breaches or repudiatesthe agreement to transfer the property' " (Jakacic v Jakacic, 279 AD2d 551, 552 [2001],quoting Sitkowski v Petzing, 175 AD2d 801, 802 [1991]). Here, the Supreme Courtproperly found that the cause of action for a constructive trust was time-barred because theapplicable six-year statute of limitations began to run on March 6, 1995, the date of the allegedlywrongful transfer of the property, and this action was not commenced until February 16, 2005(see Soscia v Soscia, 35 AD3d841 [2006]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Fisher, J.P., Miller, Dillon and Eng, JJ., concur. [See 2007 NY SlipOp 33527(U).]