| Tornheim v Tornheim |
| 2009 NY Slip Op 08211 [67 AD3d 775] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Uri Tornheim, Appellant, v Joseph Tornheim, Respondent,et al., Defendant. |
—[*1] Joseph Tornheim, Brooklyn, N.Y., respondent pro se.
In an action, inter alia, to impose a constructive trust on certain real property, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County(Iannacci, J.), dated July 28, 2008, as granted that branch of the motion of the defendant JosephTornheim which was for summary judgment dismissing the complaint insofar as asserted againsthim.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, Uri Tornheim, and the defendants Joseph Tornheim (hereinafter Joseph) andShlomo Tornheim (hereinafter Shlomo) are brothers. By deed dated July 31, 1996, nonpartyHelen E. Goldstein conveyed the subject real property located in Cedarhurst to Joseph and hisbrother, nonparty Peter Tornheim (hereinafter Peter). By deed dated March 31, 1999, Peterconveyed his interest in the subject property to Shlomo. In the complaint, the plaintiff allegesthat, in 1996, he, Peter, Joseph, and Shlomo, "organized and formed an informal partnershipand/or co-venture, so [as] to jointly acquire and purchase" the subject property. While theplaintiff acknowledges that his name does not appear on any of the conveyances or otherdocuments which pertain to the subject property, he claims that he "entrusted his brothers inholding his share of title in the [subject] [p]roperty in trust for [p]laintiff's exclusive benefit." Hecommenced this action to impose a constructive trust on the subject property, and for a judgmentdeclaring that he is the beneficial owner of a share of the subject property. The Supreme Courtgranted [*2]that branch of Joseph's motion which was forsummary judgment dismissing the complaint insofar as asserted against him on the ground that itwas time-barred. We affirm.
"A cause of action for a constructive trust is governed by the six-year statute of limitationsprovided by CPLR 213 (1), which begins to run upon the occurrence of the allegedly wrongfulact giving rise to a duty of restitution" (Taintor v Taintor, 50 AD3d 887, 888 [2008]; see Zane v Minion, 63 AD3d1151, 1153 [2009]; DeLaurentis vDeLaurentis, 47 AD3d 750, 751 [2008]; Soscia v Soscia, 35 AD3d 841, 843 [2006]; Ta Chun Wang vChun Wong, 163 AD2d 300, 302 [1990], cert denied 501 US 1252 [1991]). " ' "Adetermination of when the wrongful act triggering the running of the Statute of Limitationsoccurs depends upon whether the constructive trustee acquired the property wrongfully, in whichcase the property would be held adversely from the date of acquisition . . . orwhether the constructive trustee wrongfully withholds property acquired lawfully from thebeneficiary, in which case the property would be held adversely from the date the trusteebreaches or repudiates the agreement to transfer the property" ' " (Zane v Minion, 63AD3d at 1153, quoting Jakacic v Jakacic, 279 AD2d 551, 551 [2001]; see Auffermann v Distl, 56 AD3d502, 503 [2008]; Sitkowski v Petzing, 175 AD2d 801, 802 [1991]).
The Supreme Court properly determined that the plaintiff's complaint was time-barred as toJoseph. On this record, the only action allegedly undertaken by Joseph that could be considered a"wrongful act giving rise to a duty of restitution" (Taintor, 50 AD3d at 888), and whichwould not render the complaint time-barred, would be Joseph's alleged action in 2007, when he"walked away from the conversation" with the plaintiff concerning the subject property and theplaintiff's claim that he owned a share therein. However, this would simply constitute anotheralleged instance of Joseph "avoiding any discussions with [the plaintiff] about the [subject][p]roperty," which, according to the plaintiff, Joseph began to do in 1997. Accordingly, based onthis 1997 date, as the first date on which Joseph began to avoid discussions concerning thesubject property, the plaintiff's action, which was commenced on or about January 2, 2008, istime-barred by the six-year limitations period applicable to actions to impose a constructive trust(see CPLR 213 [1]).
With regard to the plaintiff's request for a declaratory judgment, "[a]ctions for declaratoryjudgments are not ascribed a certain limitations period" (Waldman v 853 St. Nicholas Realty Corp., 64 AD3d 585, 587[2009]; see Solnick v Whalen, 49 NY2d 224, 229 [1980]). "The nature of the reliefsought in a declaratory judgment action dictates the applicable limitations period" (Waldmanv 853 St. Nicholas Realty Corp., 64 AD3d at 587; see Vigilant Ins. Co. of Am. vHousing Auth. of City of El Paso, Tex., 87 NY2d 36 [1995]). "Thus, if the action for adeclaratory judgment could have been brought in a different form asserting a particular cause ofaction, the limitations period applicable to the particular cause of action will apply"(Waldman v 853 St. Nicholas Realty Corp., 64 AD3d at 587; see New York CityHealth & Hosps. Corp. v McBarnette, 84 NY2d 194, 201 [1994]; Matter of Vecce v Town of Babylon,32 AD3d 1038, 1039-1040 [2006]). To the extent that the plaintiff asserts a cause of actionfor a declaratory judgment, such cause of action also could have been brought, as it was, as anaction to impose a constructive trust. Under the circumstances presented here, because the causeof action to impose a constructive trust against Joseph is time-barred, the declaratory judgmentcause of action against him is also time-barred under the six-year limitations period applicable toa cause of action to impose a constructive trust (see New York City Health & Hosps. Corp. vMcBarnette, 84 NY2d at 201; Waldman v 853 St. Nicholas Realty Corp., 64 AD3dat 585; Matter of Vecce v Town of Babylon, 32 AD3d at 1039-1040).
The parties' remaining contentions are not properly before this Court. Dillon, J.P.,Dickerson, Lott and Austin, JJ., concur.