| McGough v Leslie |
| 2009 NY Slip Op 06385 [65 AD3d 895] |
| September 8, 2009 |
| Appellate Division, First Department |
| Jeannette McGough et al., Respondents, v Alfred Leslie,Appellant, et al., Defendant. |
—[*1] Law Office of Mark D. Speed, New York (Mark D. Speed of counsel), forrespondents.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered February 3, 2009,which, to the extent appealed from, denied the motion by defendant Alfred Leslie for summaryjudgment dismissing the complaint as against him as time-barred and granted plaintiffs' crossmotion declaring that they are entitled to immediate possession of the artworks gifted to them,unanimously reversed, on the law, without costs, defendant Leslie's motion granted andplaintiffs' cross motion denied. The Clerk is directed to enter judgment accordingly.
Plaintiffs, the children of defendant Alfred Leslie, an artist, asserting claims for conversionand replevin, commenced this action to compel their father to relinquish artworks previouslygifted to them, or the value thereof.
The record in the instant case clearly establishes that plaintiffs' claims sound in simpleconversion rather than replevin. Plaintiffs rely on the Court of Appeals decision in SolomonR. Guggenheim Found. v Lubell (77 NY2d 311 [1991]) for the proposition that thepossessor must refuse to return the chattel. Furthermore, plaintiffs assert that the possessor musthave "actually denied [plaintiffs'] ownership rights."
Unfortunately for this contention, the Lubell Court was confronted with an action inreplevin to recover stolen property rather than a claim for conversion. Although both claims aregoverned by the same statute of limitations of three years (CPLR 214 [3]), "[t]he rule in thisState is that a cause of action for replevin against the good-faith purchaser of a stolen chattelaccrues when the true owner makes demand for return of the chattel and the person in possessionof the chattel refuses to return it" (77 NY2d at 317-318). The Lubell Court characterizedthis "demand and refusal rule" as the "rule that affords the most protection to the true owners ofstolen property" (id. at 318; seealso Close-Barzin v Christie's, Inc., 51 AD3d 444 [2008]; Matter of Peters v Sotheby's Inc., 34AD3d 29, 34 [2006], lv denied 8 NY3d 809 [2007] [demand upon, and refusal of, aperson in possession of a chattel to return it are essential elements of a cause of action inreplevin]).
The Court of Appeals specifically addressed the question of accrual of a claim sounding[*2]in conversion in State of New York v Seventh RegimentFund (98 NY2d 249 [2002]). In Seventh Regiment Fund, the Court reaffirmed theextensive precedent in this state that there is a difference in accrual between simple conversionand replevin of stolen property. In reinforcing this difference, the Court stated, "Someaffirmative act—asportation by the defendant or another person, denial of access to therightful owner or assertion to the owner of a claim on the goods, sale or other commercialexploitation of the goods by the defendant—has always been an element of conversion"(98 NY2d at 260).
The Seventh Regiment Fund Court reversed this Court, remitted the case to SupremeCourt, and held that "Supreme Court must determine upon remittal whether the Fund was a bonafide purchaser. If so, the State's claim will have accrued only after demand and refusal. If not, orif demand would have been futile, the claim will have accrued when the Fund actually interferedwith the State's property" (98 NY2d at 261).
Moreover, as early as 1991 defendant "interfered with" plaintiffs' property when, despiteentreaties by plaintiffs and defendant's ex-wife, defendant retained possession of the property.The record is replete with instances of similar interferences over the years. Thus, plaintiffs'claims in conversion are time-barred by more than a decade and must be dismissed.Concur—Andrias, J.P., Catterson, Renwick and Freedman, JJ.