| Boardman v Kennedy |
| 2013 NY Slip Op 02885 [105 AD3d 1375] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| Harriet C. Boardman, Appellant, v Katherine D. Kennedy,Individually and as Executrix of John R. Kennedy, Deceased,Respondent. |
—[*1] Zimmerman & Tyo, Attorneys, Shortsville (John E. Tyo of counsel), fordefendant-respondent.
Appeal from a judgment and order (one paper) of the Supreme Court, OntarioCounty (John J. Ark, J.), entered March 7, 2012. The judgment and order granteddefendant's motion seeking dismissal of the complaint and summary judgment dismissingthe complaint, and denied the cross motion of plaintiff for partial summary judgment onher first cause of action.
It is hereby ordered that the judgment and order so appealed from is unanimouslyaffirmed without costs.
Memorandum: Plaintiff, the ex-wife of decedent John R. Kennedy, commenced thisaction against decedent's widow, individually and as executrix of decedent's estate.Pursuant to the terms of a matrimonial stipulation between plaintiff and decedent, enteredon November 15, 1990, plaintiff received, inter alia, a one-half interest in an individualretirement account (IRA) owned by decedent. That stipulation was thereafterincorporated into their judgment of divorce, entered March 1, 1991. Plaintiff alleges thatshe never received her one-half share of the IRA.
We conclude that Supreme Court properly granted defendant's motion seekingdismissal of the complaint under CPLR 3211 and summary judgment dismissing thecomplaint under CPLR 3212, and properly denied plaintiff's cross motion for partialsummary judgment on the first cause of action. The first cause of action, for enforcementof decedent's obligation with respect to the IRA under the matrimonial stipulation andthe judgment of divorce, is governed by the six-year statute of limitations set forth inCPLR 213 (1) and (2), not by the 20-year statute of limitations for an action to enforce amoney judgment set forth in CPLR 211 (b) (see Tauber v Lebow, 65 NY2d 596,598 [1985]; Woronoff vWoronoff, 70 AD3d 933, 934 [2010], lv denied 14 NY3d 713 [2010]).Thus, the first cause of action is untimely (see Woronoff, 70 AD3d at 934).
The second cause of action, alleging fraud, is also time-barred inasmuch as thisaction was commenced more than six years after the alleged fraud was committed andmore than two years after plaintiff, acting with reasonable diligence, could havediscovered the alleged fraud (see CPLR 213 [8]; see also CPLR 203 [g];see generally Rite Aid Corp. vGrass, 48 AD3d 363, 364 [2008]). We note that plaintiff did not have to waituntil decedent retired in order to obtain her [*2]share ofhis IRA; instead, she was immediately entitled to her half of that account. Thus, it shouldnot have taken her approximately 20 years to realize that she did not receive her share ofthat asset.
Finally, the third cause of action, for unjust enrichment, is time-barred by the six-yearstatute of limitations set forth in CPLR 213 (1), which "start[ed] to run upon theoccurrence of the wrongful act giving rise to a duty of restitution" (CongregationYetev Lev D'Satmar v 26 Adar N.B. Corp., 192 AD2d 501, 503 [1993]). In anyevent, with respect to that part of the unjust enrichment cause of action asserted againstdefendant individually, we conclude that, while it is not necessary for plaintiff to be inprivity with defendant, their relationship is too attenuated to support that cause of actioninasmuch as plaintiff and defendant "simply had no dealings with each other" (Georgia Malone & Co., Inc. vRieder, 19 NY3d 511, 517-518 [2012]). Present—Centra, J.P., Fahey,Carni, Lindley and Whalen, JJ.