Opinion
2017-09961 Index No. 508983/16.
06-12-2019
Annette ATHANASATOS, Appellant, v. Anne SCARPA, et al., Respondents.
Davis, Ndanusa, Ikhlas & Saleem, LLP, Brooklyn, N.Y. (Tarik Davis of counsel), for appellant. Hagan, Coury & Associates, Brooklyn, N.Y. (Paul Golden of counsel), for respondents Anne Scarpa and Maria Donohue.
Davis, Ndanusa, Ikhlas & Saleem, LLP, Brooklyn, N.Y. (Tarik Davis of counsel), for appellant.
Hagan, Coury & Associates, Brooklyn, N.Y. (Paul Golden of counsel), for respondents Anne Scarpa and Maria Donohue.
WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action, inter alia, to impose a constructive trust upon certain real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated June 27, 2017. The order granted the motion of the defendants Anne Scarpa and Maria Donohue and the separate motion of the defendants Dean Nikitas and Jennie Goldstein pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed, with costs.
This action stems from the plaintiff's allegation that her mother and aunt, who owned a two-family house together, orally promised the plaintiff that she would eventually receive a one-half interest in the house. According to the plaintiff, as a result of this promise she expended at least $ 150,000 in the upkeep and maintenance of the house. After the plaintiff's mother was placed in a nursing home, the mother's interest in the house was transferred to the plaintiff's aunt. The plaintiff's mother died in 2007, and the plaintiff's aunt died in 2008. The plaintiff's aunt left a will, which was admitted to probate in the Surrogate's Court, Kings County, and letters testamentary were issued. In her will, the plaintiff's aunt left the entire house to her children, the defendants Anne Scarpa and Maria Donohue (hereinafter together the respondents). The plaintiff alleges that, in 2011, the respondents promised to transfer a one-third interest in the house to her. No such transfer occurred, and in 2016 the plaintiff commenced this action seeking, among other things, the imposition of a constructive trust on the subject property. The Supreme Court granted the motion of the respondents, and the separate motion of the defendants Dean Nikitas and Jennie Goldstein, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, concluding that the plaintiff "may not collaterally attack the decision of the Kings County Surrogate in a Supreme Court action."
We disagree with the Supreme Court's conclusion that this action was improperly commenced in the Supreme Court (see Russo v. Macchia–Schiavo , 72 A.D.3d 786, 787, 898 N.Y.S.2d 483 ). Nevertheless, we affirm the order appealed from, on other grounds. To the extent that the plaintiff contends that she is entitled to a constructive trust based on the alleged promise made to her by her mother and aunt, her cause of action is time-barred. The statute of limitations for a cause of action seeking to impose a constructive trust is six years (see CPLR 213[1] ; Auffermann v. Distl , 56 A.D.3d 502, 867 N.Y.S.2d 527 ). The statute of limitations "starts to run upon the occurrence of the wrongful act giving rise to a duty of restitution. A determination of when the wrongful act triggering the running of the Statute of Limitations occurs depends upon whether the constructive trustee acquired the property wrongfully, in which case the property would be held adversely from the date of acquisition, or whether the constructive trustee wrongfully withholds property acquired lawfully from the beneficiary, in which case the property would be held adversely from the date the trustee breaches or repudiates the agreement to transfer the property" ( Sitkowski v. Petzing , 175 A.D.2d 801, 802, 572 N.Y.S.2d 930 [citations omitted]; see Soscia v. Soscia , 35 A.D.3d 841, 843, 829 N.Y.S.2d 543 ).
Here, the gravamen of the cause of action for the imposition of a constructive trust based upon the alleged promise made by the mother and aunt is that the respondents wrongfully acquired the subject property upon the death of the plaintiff's aunt. The statute of limitations on this cause of action began to run in 2008, when the aunt died and the plaintiff discovered that the respondents had inherited the entire property. This action was commenced on May 30, 2016, more than six years after the allegedly wrongful transfer (see Soscia v. Soscia , 35 A.D.3d at 843, 829 N.Y.S.2d 543 ).
To the extent that the plaintiff contends that she is entitled to the imposition of a constructive trust based on the alleged promise made to her by the respondents, the complaint fails to state a cause of action. In order for a constructive trust to be established, it is necessary to have (1) a confidential or fiduciary relationship, (2) a promise, express or implied, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Sharp v. Kosmalski , 40 N.Y.2d 119, 121–122, 386 N.Y.S.2d 72, 351 N.E.2d 721 ; Marini v. Lombardo , 79 A.D.3d 932, 933, 912 N.Y.S.2d 693 ). Here, the plaintiff has failed to allege any transfer made by her in reliance on the respondents' promise (see Henning v. Henning , 103 A.D.3d 778, 962 N.Y.S.2d 189 ; Old Republic Natl. Tit. Ins. Co. v. Cardinal Abstract Corp. , 14 A.D.3d 678, 680, 790 N.Y.S.2d 143 ).
MASTRO, J.P., MALTESE, DUFFY and CONNOLLY, JJ., concur.