| Benn v Benn |
| 2011 NY Slip Op 01936 [82 AD3d 548] |
| March 17, 2011 |
| Appellate Division, First Department |
| Eric Benn, Appellant, v Stefan Benn et al., Respondents, etal., Defendant. |
—[*1]
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered December 30,2009, which, to the extent appealed from as limited by the briefs, granted respondents' motion todismiss the complaint pursuant to CPLR 3211, unanimously reversed, on the law, without costs,and the first, second, third, fifth, sixth, and seventh causes of action reinstated.
"On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground thatit is barred by the statute of limitations, a defendant bears the initial burden of establishing, primafacie, that the time in which to sue has expired. In considering the motion, a court must take theallegations in the complaint as true and resolve all inferences in favor of the plaintiff" (Island ADC, Inc. v BaldassanoArchitectural Group, P.C., 49 AD3d 815, 816 [2008] [citations omitted]). Further,plaintiff's submissions in response to the motion "must be given their most favorable intendment"(Arrington v New York Times Co., 55 NY2d 433, 442 [1982], cert denied 459US 1146 [1983]).
Plaintiff alleged that he and his brother, Stefan, had an oral agreement which provided that inexchange for money and labor, plaintiff would receive title to the subject condominium unit, andthat plaintiff paid a sum of money and provided labor for the renovation of the building. Inresponse to the motion, plaintiff supplemented his complaint by averring that while he and Stefanargued over his shortfall of labor, they never disagreed whether plaintiff was entitled toownership of the unit and only disputed how plaintiff should compensate Stefan for hisinsufficient contribution to the project. Plaintiff also stated that Bennco never held title to theapartment adversely until it transferred it to Stefan in 2004. Moreover, plaintiff maintained thatprior to 2005 Stefan never stated that he would not deliver title to plaintiff and that plaintiff neverdemanded title until 2005.
Since plaintiff's claims are not based on Bennco wrongfully acquiring the apartment, butrather on defendants wrongfully refusing to transfer it to plaintiff, the statute of limitations beganto run at the earliest in 2004, when Bennco transferred the deed to plaintiff's unit to Stefan, and[*2]at the latest when in 2005 plaintiff demanded title to hisapartment and defendants refused (seeMorando v Morando, 41 AD3d 559, 561 [2007]; Maric Piping v Maric, 271AD2d 507, 508 [2000]). Indeed, the transfer of the title to Stefan was the only "identifiable,wrongful act" demonstrating Stefan's refusal to convey title to plaintiff (Sitkowski vPetzing, 175 AD2d 801, 802 [1991]).
There is no basis to conclude that the statute of limitations began to run in 1997, whendefendants were legally able to convey the unit, especially since Bennco retained title to bothplaintiff and Stefan's units until 2004, and such retention of title was not adverse to plaintiff.Further, we find that the reliance on e-mails written from plaintiff to Stefan in 2006 and 2007was erroneous because the e-mails were ambiguous and did not expressly acknowledge thatStefan had refused to give plaintiff title to his apartment 10 years before the commencement ofthis action, as defendants claim. In fact, in construing the e-mails in a light most favorable toplaintiff, the conclusion to be drawn is that plaintiff was acknowledging that he and Stefan hadbeen fighting over the value of his labor and not over whether or not plaintiff would receive titleto the apartment.
To the extent the motion court found certain of the causes of action barred by the statute offrauds, we find that at a minimum, plaintiff's allegations raise triable issues of fact as to whetherhis behavior "constituted partial performance ' "unequivocally referable" ' to the oral [agreement],and, as such, [are] sufficient to take the alleged agreement out of the Statute of Frauds"(H.P.P. Ice Rink v New York Islanders, 251 AD2d 249, 249 [1998] [citations omitted]).
On appeal, plaintiff does not seek relief from the dismissal of the fourth cause of action. Healso concedes that the eighth cause of action for unjust enrichment is duplicative of the breach ofcontract claim, and thus that claim is not reinstated (see Cooper, Bamundo, Hecht & Longworth, LLP v Kuczinski, 14 AD3d644, 645 [2005]). Further, to the extent the fifth cause of action for conversion is reinstated,it is limited to the portion which alleged conversion of monies, since, as plaintiff acknowledges," '[a]n action sounding in conversion does not lie where the property involved is real property' "(see Dickinson v Igoni, 76 AD3d943, 945 [2010] [citations omitted]). Concur—Gonzalez, P.J., Tom, Acosta, Richterand RomÁn, JJ. [Prior Case History: 2009 NY Slip Op 33031(U).]