| Bodden v Kean |
| 2011 NY Slip Op 05794 [86 AD3d 524] |
| July 5, 2011 |
| Appellate Division, Second Department |
| Patricia Bodden, Respondent, v David Kean,Appellant. |
—[*1]
In an action, inter alia, to impose a constructive trust on certain real property, the defendantappeals, as limited by his brief, from (1) so much of an order of the Supreme Court, KingsCounty (Knipel, J.), dated May 22, 2009, as denied those branches of his motion which were todismiss the complaint pursuant to CPLR 3211 (a) (1), (5) and (7) and to cancel a notice ofpendency, and (2) so much of an order of the same court dated January 26, 2010, as, uponreargument, adhered to the determination in the order dated May 22, 2009, denying that branchof his motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.
Ordered that the orders are affirmed insofar as appealed from, without costs ordisbursements.
A cause of action to impose a constructive trust is governed by a six-year statute oflimitations, which begins to run upon the occurrence of the wrongful act giving rise to a duty ofrestitution (see CPLR 213 [1]; DeLaurentis v DeLaurentis, 47 AD3d 750, 751 [2008]; Auffermann v Distl, 56 AD3d 502[2008]; Reiner v Jaeger, 50 AD3d761 [2008]). Where, as here, the plaintiff alleges that the defendant wrongfully withheld thesubject real property after lawfully acquiring it, the date of the wrongful act triggering therunning of the statute of limitations is the date the defendant allegedly breached or repudiated theagreement to transfer the property to the plaintiff (see Auffermann v Distl, 56 AD3d at502; DeLaurentis v DeLaurentis, 47 AD3d at 752). The defendant allegedly repudiatedthe agreement on June 11, 2008, and the plaintiff commenced this action in August 2008.Therefore, this action was timely commenced (see Klamar v Marsans, 79 AD3d 973, 974 [2010]; Vitarelle v Vitarelle, 65 AD3d1034, 1035 [2009]; Dingeo v Santiago, 87 AD2d 859 [1982]). Contrary to thedefendant's contention, there is no basis upon which to conclude that the statute of limitationsbegan to run in 2001 when, without the plaintiff's knowledge or consent, the defendant obtaineda relatively small loan which was consolidated with, and increased the outstanding balance of,the original purchase money mortgage on the property. On the record presented, this act did notconstitute a repudiation or breach of the defendant's agreement with the plaintiff (cf.DeLaurentis v DeLaurentis, 47 AD3d at 752). Accordingly, the Supreme Court properlydenied that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (5) to dismissthe complaint as time-barred, and, upon reargument, [*2]properlyadhered to the original determination.
The defendant also contends that he established entitlement to dismissal of the complaintpursuant to CPLR 3211 (a) (7), based upon the affidavits submitted by the parties in support of,and in opposition to, his motion. Where a court considers evidentiary material in determining amotion to dismiss a complaint pursuant to CPLR 3211 (a) (7), but does not convert the motioninto one for summary judgment, the criterion becomes whether the plaintiff has a cause of action,not whether the plaintiff has stated one, and unless the movant shows that a material fact asclaimed by the plaintiff is not a fact at all and no significant dispute exists regarding the allegedfact, the complaint shall not be dismissed (see Guggenheimer v Ginzburg, 43 NY2d 268,275 [1977]; Rietschel v MaimonidesMed. Ctr., 83 AD3d 810, 810 [2011]; Sokol v Leader, 74 AD3d 1180, 1181-1182 [2010]). Generally,although a plaintiff's affidavit may be considered to remedy pleading defects, a plaintiff is notrequired to offer evidentiary support for a properly pleaded claim (see Nonnon v City of New York, 9NY3d 825, 827 [2007]). Dismissal is warranted only if an affidavit of a party, whether theplaintiff or defendant, establishes "conclusively" that the plaintiff has no cause of action(Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; see Lawrence v Graubard Miller, 11NY3d 588, 595 [2008]; Sokol v Leader, 74 AD3d at 1182).
Here, the complaint properly pleads the elements of a cause of action to impose aconstructive trust: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer inreliance thereon, and (4) unjust enrichment (see Sharp v Kosmalski, 40 NY2d 119, 121[1976]; Klamar v Marsans, 79 AD3d at 973-974; Vitarelle v Vitarelle, 65 AD3dat 1034-1035; Panish v Panish, 24AD3d 642, 643 [2005]). The defendant did not demonstrate that a material fact alleged inthe complaint is not a fact at all and that no significant dispute exists regarding it. Accordingly,the Supreme Court properly denied that branch of the defendant's motion which was to dismissthe complaint pursuant to CPLR 3211 (a) (7).
A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) will be granted only if thedocumentary evidence submitted by the defendant utterly refutes the factual allegations of thecomplaint and conclusively establishes a defense to the claims as a matter of law (see Goshenv Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Rietschel v Maimonides Med. Ctr., 83AD3d 810 [2011]). The documentary evidence submitted by the defendant as exhibits to hisaffidavit failed to satisfy this standard, and this branch of his motion was properly denied.
In light of the Supreme Court's proper denial of that branch of the defendant's motion whichwas to dismiss the complaint, the Supreme Court properly denied that branch of the defendant'smotion which was to cancel the notice of pendency (see Nastasi v Nastasi, 26 AD3d 32, 35-36 [2005]). Angiolillo, J.P.,Dickerson, Hall and Roman, JJ., concur.