| Klamar v Marsans |
| 2010 NY Slip Op 09474 [79 AD3d 973] |
| December 21, 2010 |
| Appellate Division, Second Department |
| John Klamar, Appellant, v Andrea Klamar Marsans,Respondent. |
—[*1] Roe Taroff Taitz & Portman, LLP, Bohemia, N.Y. (Linda D. Calder of counsel), forrespondent.
In an action to impose a constructive trust upon certain real property, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.),dated June 2, 2009, as granted the defendant's motion, in effect, to dismiss the complaint, inter alia,pursuant to CPLR 3211 (a) (1), (5) and (7).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion to dismiss the complaint is denied.
Contrary to the Supreme Court's determination, the plaintiff sufficiently alleged the elements of acause of action to impose a constructive trust, including the existence of a confidential or fiduciaryrelationship, a promise, a transfer in reliance thereon, and unjust enrichment (see Sharp vKosmalski, 40 NY2d 119, 121 [1976]; Panish v Panish, 24 AD3d 642, 643 [2005]). Moreover, thedocumentary evidence submitted by the defendant failed to establish a defense to the action as a matterof law.
Furthermore, the action was not barred by the statute of limitations. The plaintiff commenced thisaction in December 2006. A claim for the imposition of a constructive trust is governed by the six-yearstatute of limitations found in CPLR 213 (1), and "begins to run at the time of the wrongful conduct orevent giving rise to a duty of restitution" (Maric Piping v Maric, 271 AD2d 507, 508 [2000];see Vitarelle v Vitarelle, 65 AD3d1034, 1035 [2009]; Panish v Panish, 24 AD3d at 643). Here, the parties agree that thedefendant refused to transfer the property to the plaintiff in 2006. Under these circumstances, the actionwas timely commenced. Rivera, J.P., Dickerson, Lott and Sgroi, JJ., concur.