| Christodoulou v Christodoulou |
| 2011 NY Slip Op 08109 [89 AD3d 783] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Eleni K. Christodoulou, Respondent, v KyriacosChristodoulou et al., Appellants. |
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In an action, inter alia, to recover damages for fraud and to impose a constructive trust oncertain property, the defendants appeal from an order of the Supreme Court, Queens County(Kitzes, J.), dated May 27, 2010, which denied their motion pursuant to CPLR 3211 (a) (5) todismiss the complaint as time-barred.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendants' contention, the Supreme Court properly denied their motionpursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred. On a motion to dismiss acomplaint pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the moving defendantmust establish, prima facie, that the time in which to commence the action has expired. Theburden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations istolled or is otherwise inapplicable (seeBaptiste v Harding-Marin, 88 AD3d 752 [2d Dept 2011]; Rakusin v Miano, 84 AD3d 1051,1052 [2011]). Here, the defendants failed to demonstrate that the plaintiff's cause of action toimpose a constructive trust was not timely commenced within six years (see CPLR 213[1]) after the defendants breached their alleged promise by refusing to transfer an ownershipinterest in the defendant corporation to the plaintiff (see CPLR 213 [1]; Morris v Gianelli, 71 AD3d 965,966-967 [2010]; Zane v Minion, 63AD3d 1151, 1153-1154 [2009]).
Moreover, given the evidence that the plaintiff's discovery of the defendants' alleged fraudwas delayed due to the plaintiff's relative lack of sophistication, the close and trusting familialrelationship she shared with the individual defendants, and the false representations purportedlymade by those defendants, the Supreme Court properly denied that branch of the defendants'motion [*2]which was to dismiss the plaintiff's cause of actionalleging fraud as time-barred (see CPLR 213 [8]; see e.g. Chung v Wang, 79 AD3d 693, 694 [2010]; Mattera vMattera, 125 AD2d 555, 558 [1986]).
The defendants' remaining contentions are either improperly raised for the first time onappeal or without merit. Mastro, J.P., Dillon, Sgroi and Miller, JJ., concur.