| Zane v Minion |
| 2009 NY Slip Op 05541 [63 AD3d 1151] |
| June 30, 2009 |
| Appellate Division, Second Department |
| James B. Zane, Appellant, v Jane Minion, Also Known asJane Minion Zane, Respondent. |
—[*1] Michael T. Sucher, Brooklyn, N.Y. (Andrew M. Shabasson and Danielle E. Sucher ofcounsel), for respondent.
In an action, inter alia, to impose a constructive trust upon certain real property and torecover damages for unjust enrichment, the plaintiff appeals, as limited by his brief, from somuch of an order of the Supreme Court, Queens County (Satterfield, J.), entered December 4,2008, as granted those branches of the defendant's motion which were pursuant to CPLR 3211(a) (7) to dismiss the fourth and fifth causes of action for failure to state a cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendant's motion which were pursuant to CPLR 3211 (a) (7) to dismiss thefourth and fifth causes of action are denied.
In deciding a motion to dismiss a complaint for failure to state a cause of action pursuant toCPLR 3211 (a) (7), the court must give the pleading a liberal construction, accept all of the factsalleged in the pleading to be true, and accord the plaintiff the benefit of every possible favorableinference in determining whether the allegations fit under any cognizable legal theory (seeLeon v Martinez, 84 NY2d 83, 87-88 [1994]; Guggenheimer v Ginzburg, 43 NY2d268, 275 [1977]). In order to state a cause of action to impose a constructive trust, a plaintiffmust allege (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliancethereon, and (4) unjust enrichment (see Simonds v Simonds, 45 NY2d 233, 242 [1978];Nastasi v Nastasi, 26 AD3d 32, 37 [2005]).
Here, the plaintiff alleged that in exchange for conveying a one-half interest in his realproperty to his wife, the defendant, she agreed to consent to the refinancing of two mortgages onthe property and, thereafter, to reconvey her interest to him by naming him as the beneficiary ofher interest in the property in her will or, should she survive him, as he designated in his will(see Iwanow v Iwanow, 39 AD3d 476 [2007]; Leire v Anderson-Leire, 22 AD3d944, 946 [2005]; Onorato v Lupoli, 135 AD2d 693, 695 [1987]; Tomaino v Tomaino,68 AD2d 267, 269 [1979]). In reliance on those promises, the plaintiff allegedly transferreda one-half interest in the property to the defendant (see Leire v Anderson-Leire, [*2]22 AD3d at 946). Approximately 10 years later, the defendantrefused the plaintiff's request that she consent to the refinancing of the mortgages. In addition,the defendant informed the plaintiff that she had revoked her will leaving her one-half interest inthe property to him or, should she survive him, as he designated in his will. As a result of thedefendant's alleged breach of her promises, the plaintiff alleged, the defendant was unjustlyenriched, receiving a one-half interest in the property and the benefit of its appreciation from the$1.7 million in improvements he had made to it. Contrary to the Supreme Court's determination,these allegations state a cause of action to impose a constructive trust and to recover damages forunjust enrichment (see Leire v Anderson-Leire, 22 AD3d at 946). Contrary to thedefendant's contention, the deed, which indicates that the property was transferred for minimalconsideration, does not conclusively establish that the conveyance was an unconditional gift(see Leon v Martinez, 84 NY2d at 88). Accordingly, the Supreme Court should havedenied those branches of the defendant's motion which were pursuant to CPLR 3211 (a) (7) todismiss the fourth and fifth causes of action.
The defendant's first alternative argument for affirmance (see Parochial Bus Sys. v Boardof Educ. of City of N.Y., 60 NY2d 539, 545 [1983]), that those branches of its motion whichwere pursuant to CPLR 3211 (a) (5) to dismiss the fourth and fifth causes of action astime-barred, should have been granted, is without merit. The equitable claim to impose aconstructive trust is governed by a six-year statute of limitations (see CPLR 213 [1];Auffermann v Distl, 56 AD3d 502 [2008]; Reiner v Jaeger, 50 AD3d 761 [2008];Jakacic v Jakacic, 279 AD2d 551 [2001]). " 'A determination of when the wrongful acttriggering the running of the Statute of Limitations occurs depends upon whether theconstructive trustee acquired the property wrongfully, in which case the property would be heldadversely from the date of acquisition . . . or whether the constructive trusteewrongfully withholds property acquired lawfully from the beneficiary, in which case theproperty would be held adversely from the date the trustee breaches or repudiates the agreementto transfer the property' " (Jakacic v Jakacic, 279 AD2d at 551, quoting Sitkowski vPetzing, 175 AD2d 801, 802 [1991]).
Here, the plaintiff's claim accrued when the defendant allegedly failed to honor her promises,which, according to the complaint, occurred in late 2005 or early 2006. Since the action wascommenced in January 2008, the causes of action to impose a constructive trust and to recoverdamages for unjust enrichment are not barred by the statute of limitations (see Panish vPanish, 24 AD3d 642, 643 [2005]; Jakacic v Jakacic, 279 AD2d at 552-553;Lyons v Quandt, 91 AD2d 709, 710 [1982]).
The defendant's second alternative argument for affirmance (see Parochial Bus Sys. vBoard of Educ. of City of N.Y., 60 NY2d at 545) is without merit. Mastro, J.P., Dickerson,Eng and Hall, JJ., concur. [See 2008 NY Slip Op 33329(U).]