| Vitarelle v Vitarelle |
| 2009 NY Slip Op 06422 [65 AD3d 1034] |
| September 8, 2009 |
| Appellate Division, Second Department |
| Darlene-Marie L. Vitarelle, Appellant, v Richard Vitarelle,Jr., Respondent. |
—[*1] Siben & Siben, LLP, Bay Shore, N.Y. (Michael P. DeNoto of counsel), forrespondent.
In an action to impose a constructive trust upon certain real property, the plaintiff,Darlene-Marie L. Vitarelle, appeals, as limited by her brief, from so much of an order of theSupreme Court, Suffolk County (Cohalan, J.), dated January 3, 2008, as granted the defendant'scross motion pursuant to CPLR 3211 (a) (1), (5) and (7) to dismiss the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' cross motion to dismiss the complaint is denied.
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should "acceptthe facts as alleged in the complaint as true, accord plaintiffs the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within any cognizablelegal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Sinensky v Rokowsky, 22 AD3d563, 564 [2005]). "To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), thedocumentary evidence that forms the basis of the defense must be such that it resolves all factualissues as a matter of law, and conclusively disposes of the plaintiff's claim" (Teitler v Pollack& Sons, 288 AD2d 302 [2001]; see Leon v Martinez, 84 NY2d at 88).
Here, contrary to the Supreme Court's determination, the plaintiff sufficiently alleged theelements of a cause of action for the imposition of a constructive trust, including the existence ofa confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjustenrichment (see Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Panish v Panish, 24 AD3d 642,643 [2005]). Moreover, the documentary evidence submitted by the defendant failed to establisha defense to the action as a matter of law.
Further, the Supreme Court erred in concluding that the plaintiff's action was barred by thestatute of limitations. The plaintiff commenced this action in December 2006. A claim for theimposition of a constructive trust is governed by the six-year statute of limitations found inCPLR 213 (1) and "begins to run at the time of the wrongful conduct or event giving rise to aduty of restitution" (Maric Piping v Maric, 271 AD2d 507, 508 [2000]). Here, theplaintiff alleged in her affidavit that the defendant breached or repudiated the agreement totransfer the property to her in 2003. Under these circumstances, the action [*2]was timely commenced.
The Supreme Court also erred in concluding that the plaintiff's action was barred by thedoctrines of res judicata and collateral estoppel (see Luscher v Arrua, 21 AD3d 1005 [2005]).
Accordingly, the Supreme Court erred in granting the defendant's cross motion to dismiss thecomplaint pursuant to CPLR 3211 (a) (1), (5) and (7). Prudenti, P.J., Miller, Covello and Austin,JJ., concur.