| Coombs v Jervier |
| 2010 NY Slip Op 04727 [74 AD3d 724] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Adrean Coombs, Appellant, v Beverly Jervier et al.,Respondents, et al., Defendants. |
—[*1] Farrell Fritz, P.C., Uniondale, N.Y. (Bruce N. Roberts of counsel), for respondents.
In an action, inter alia, to recover damages for fraud and to impose a constructive trust, theplaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated July 27,2009, which granted the motion of the defendants Beverly Jervier and Timothy Jervier to dismissthe complaint insofar as asserted against them pursuant to CPLR 3211 (a) (3) and (5).
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action in 2008, asserting causes of action alleging, inter alia,fraud, breach of constructive trust, and unjust enrichment associated with an allegedly forgeddeed dated February 8, 1995, involving real property located in Brooklyn, New York. Thecomplaint alleges, among other things, that the defendants utilized the forged deed which wasrecorded in February 1995, to extinguish the ownership interest which the plaintiff's father had inthe subject property in 1995. The Supreme Court granted the motion of the defendants BeverlyJervier and Timothy Jervier (hereinafter together the defendants) to dismiss the complaint insofaras asserted against them pursuant to CPLR 3211 (a) (3) and (5) on the grounds that the causes ofaction were barred by the applicable statute of limitations. We affirm.
The time within which an action based upon fraud "must be commenced shall be the greaterof six years from the date the cause of action accrued or two years from the time the plaintiff. . . discovered the fraud, or could with reasonable diligence have discovered it"(CPLR 213 [8]; see Piedra v Vanover, 174 AD2d 191 [1992]). Causes of action allegingunjust enrichment and "to impose a constructive trust [are] governed by a six-year statute oflimitations and begin[ ] to accrue 'upon the occurrence of the wrongful act giving rise to a dutyof restitution and not from the time the facts constituting the fraud are discovered' " (Reiner v Jaeger, 50 AD3d 761,761 [2008], quoting Soscia vSoscia, 35 AD3d 841, 843 [2006]; see CPLR 213 [1], [8]; Ingrami v Rovner, 45 AD3d 806,808 [2007]; Congregation Yetev Lev D'Satmar v 26 Adar N.B. Corp., 192 AD2d 501,503 [1993]).
"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 [*2]case the propertywould be held adversely from the date the trustee breaches or repudiates the agreement totransfer the property" (Tornheim vTornheim, 67 AD3d 775, 776 [2009], quoting Zane v Minion, 63 AD3d 1151, 1153 [2009]; see Taintor v Taintor, 50 AD3d887 [2008]; Pisciotto v Dries, 306 AD2d 262, 263 [2003]; Jakacic v Jakacic,279 AD2d 551, 552 [2001]; Mazzone v Mazzone, 269 AD2d 574, 575 [2000]).
Here, in support of their motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), thedefendants established, prima facie, that the causes of action alleging fraud, constructive trust,and unjust enrichment were time-barred by showing that they accrued on February 8, 1995, thedate when the alleged forgery occurred, or on February 24, 1995, when the subject deed wasrecorded (see Matter of Schwartz,44 AD3d 779 [2007]; Swift v NewYork Med. Coll., 25 AD3d 686, 687 [2006]). Moreover, the plaintiff failed tocommence this action within two years after the fraud could have been discovered withreasonable diligence (see CPLR 203 [g]; Freda v McNamara, 254 AD2d 251[1998]).
In opposition, the plaintiff failed to "aver evidentiary facts establishing that the case fallswithin an exception to the Statute of Limitations" (Savarese v Shatz, 273 AD2d 219, 220[2000] [internal quotation marks omitted]; see Pate v Pate, 17 AD3d 334 [2005]; Green v Albert, 199AD2d 465, 465 [1993]). The plaintiff's remaining contentions are without merit. Accordingly,the plaintiff's causes of action were properly dismissed as outside the applicable statute oflimitations (see CPLR 213 [1], [8]).
In light of the foregoing, we need not reach the plaintiff's remaining contentions. Dillon, J.P.,Balkin, Belen and Lott, JJ., concur.