| Morris v Gianelli |
| 2010 NY Slip Op 02524 [71 AD3d 965] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Theresa Morris, Appellant, v Vincent J. Gianelli et al.,Respondents. |
—[*1] Laurino & Laurino, Garden City, N.Y. (Louis D. Laurino and Lisa M. Sconzo of counsel),for respondent Vincent J. Gianelli. Paul J. Giacomo, Jr., New York, N.Y., for respondent Philip A. Gianelli.
In an action, inter alia, to impose constructive trusts on certain real property, the plaintiffappeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County(Golia, J.), entered March 19, 2009, as, upon reargument, adhered to an original determination inan order dated June 19, 2008, granting those branches of the defendants' respective cross motionswhich were to dismiss the third cause of action insofar as asserted against each of them astime-barred.
Ordered that the order entered March 19, 2009, is reversed insofar as appealed from, on thelaw, with costs, and, upon reargument, the order dated June 19, 2008, is vacated, and thosebranches of the defendants' respective cross motions which were to dismiss the third cause ofaction insofar as asserted against each of them as time-barred are denied.
On September 26, 2007, the plaintiff commenced this action against her two brothersregarding two parcels of real property formerly owned by the parties' father. The complaintalleged that on July 31, 2001, the parties' father executed deeds conveying the two subjectproperties from the father to the defendants. The complaint alleged that the transfer was made ata time when the parties' father was "of weakened strength and weakened capacity," and when thedefendants knew that the father was executing a will bequeathing his entire estate to the parties.The complaint further alleged that the transfer of the properties was only discovered by theplaintiff after the father's death on March 2, 2006, when a notice of pendency was filed againstthe subject properties by another of the father's children on or about December 28, 2006. Thethird cause of action to impose a constructive trust alleged that the defendants promised to carryout the testamentary wishes of the father and divide the interest in the subject properties equallyamong the parties, and that the father relied upon the representations of the defendants andsigned the deeds conveying the properties to the defendants. However, the third cause of actionalleged that when[*2]"the plaintiff demanded the conveyance bythe defendants of the . . . properties to [the father's estate]," the defendants refused.
In an order dated June 19, 2008, the Supreme Court, inter alia, granted those branches of thedefendants' respective cross motions which were to dismiss the third cause of action insofar asasserted against each of them as time-barred. In an order entered March 19, 2009, uponreargument, the Supreme Court, among other things, adhered to so much of its originaldetermination as granted those branches of the defendants' respective cross motions. We reversethe order insofar as appealed from.
The Supreme Court erred in concluding that the plaintiff's third cause of action was barredby the statute of limitations. "To dismiss a cause of action pursuant to CPLR 3211 (a) (5), on theground that it is barred by the Statute of Limitations, a defendant bears the initial burden ofestablishing prima facie that the time in which to sue has expired" (Savarese v Shatz, 273AD2d 219, 220 [2000]; see Sabadie vBurke, 47 AD3d 913, 914 [2008]). In addition, upon a motion to dismiss a complaintpursuant to CPLR 3211, a court must take the allegations in the complaint as true and resolve allinferences in favor of the plaintiff (see Cron v Hargro Fabrics, 91 NY2d 362, 366[1998]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
Construing the facts in the complaint in the light most favorable to the plaintiff, we find thatthe defendants failed to establish their prima facie entitlement to dismissal pursuant to CPLR3211 (a) (5). "A determination of when the wrongful act triggering the running of the Statute ofLimitations occurs depends upon whether the constructive trustee acquired the propertywrongfully, in which case the property would be held adversely from the date of acquisition. . . or whether the constructive trustee wrongfully withholds property acquiredlawfully from the beneficiary, in which case the property would be held adversely from the datethe trustee breaches or repudiates the agreement to transfer the property" (Sitkowski vPetzing, 175 AD2d 801, 802 [1991]; see Tornheim v Tornheim, 67 AD3d 775 [2009]; Zane v Minion, 63 AD3d 1151,1153 [2009]; Jakacic v Jakacic, 279 AD2d 551, 552 [2001]). Under the circumstances,the third cause of action was timely interposed because it alleges that the wrongful act thattriggered the running of the statute of limitations did not occur until after the death of the parties'father (see Vitarelle v Vitarelle, 65AD3d 1034 [2009]; cf. Zane vMinion, 63 AD3d 1151 [2009]; Panish v Panish, 24 AD3d 642, 643 [2005]).
The defendants' remaining contentions are without merit. Fisher, J.P., Miller, Eng and Hall,JJ., concur.