| Matter of Chung Li |
| 2012 NY Slip Op 03443 [95 AD3d 881] |
| May 1, 2012 |
| Appellate Division, Second Department |
| In the Matter of Chung Li, Also Known as Kwong Chung Lee andAnother, Deceased. Chun Ka Luk, as Administrator of the Estate of Nancy Lee Luk, Deceased,Appellant; Donald Edward Osborn et al., Respondents. |
—[*1] Reed Smith LLP, New York, N.Y. (John B. Berringer and Geoffrey G. Young of counsel),for respondent Donald Edward Osborn.
In a proceeding pursuant to SCPA 2103, inter alia, to discover property allegedly withheldfrom the estate of Chung Li, also known as Kwong Chung Lee, also known as Chung Lee, ChunKa Luk, as Administrator of the Estate of Nancy Lee Luk, appeals from an order of theSurrogate's Court, Queens County (Kelly, J.), dated June 8, 2011, which denied Nancy Lee Luk'smotion pursuant to CPLR 3211 (a) (5) to dismiss the petition as time-barred.
Ordered that the order is affirmed, with costs.
The petitioner, Donald Edward Osborn, as ancillary administrator of the Estate of Chung Li,also known as Kwong Chung Lee, also known as Chung Lee (hereinafter the decedent),commenced this proceeding pursuant to SCPA 2103 against the respondent Nancy Lee Luk, thedecedent's daughter, for discovery and delivery of certain property allegedly belonging to thedecedent's estate. Specifically, the petitioner alleged that Luk converted the decedent's stockinterests in three family businesses.
On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that itis barred by the statute of limitations, the movant bears the initial burden of establishing, primafacie, that the time in which to sue has expired (see Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d815, 816 [2008]). With respect to a discovery proceeding pursuant to SCPA article 21,"[c]ourts have likened such a proceeding to an action for conversion or replevin and applied athree-year Statute of Limitations" (Matter of King, 305 AD2d 683, 683 [2003] [internalquotation marks omitted]; see CPLR 214 [3]). "[A]ccrual runs from the date theconversion takes place and not from discovery or the exercise of diligence to discover"(Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 44[1995] [citation omitted]; see Matter ofRausman, 50 AD3d 909, 910 [2008]).
Here, Luk failed to meet her prima facie burden of demonstrating that the statute oflimitations on the petitioner's conversion claim had run. The evidence submitted by Luk insupport of her motion did not establish that the purported conversion of the decedent's ownershipinterest [*2]in the companies occurred more than three years priorto the commencement of this proceeding. Accordingly, the Surrogate's Court properly deniedLuk's motion pursuant to CPLR 3211 (a) (5) to dismiss the petition as time-barred. Florio, J.P.,Balkin, Lott and Miller, JJ., concur. [Prior Case History: 32 Misc 3d 1225(A), 2011 NY SlipOp 51422(U).]