Robert M. Callagy, Respondent-Appellant. v. << (1999)

Order, Surrogate's Court, New York County (Eve Preminger, S.), entered May 21, 1998, which, in a proceeding to impose a constructive trust on real property held by respondent estate, denied respondent's motion to dismiss the proceeding as barred by the Statute of Limitations, unanimously affirmed, without costs.

The motion was properly denied on the ground that issues of fact exist as to when petitioner's decedent (the husband) first demanded reconveyance of the subject property, and when respondent's decedent (the wife) first repudiated her alleged promise to reconvey the property on demand, thereby starting the Statute of Limitations (see, Sitkowski v. Petzing, 175 A.D.2d 801, 572 N.Y.S.2d 930).   Petitioner's bill of particulars does contain an admission that advances respondent's position that the husband's first demand for reconveyance was made on January 1, 1990.   Other evidence, however, in particular, the two letters from the decedents' attorneys dated May and November 1990, relied on by the Surrogate, and which discuss possible tax and estate planning benefits of keeping title in the wife's name without mention of any dispute between the husband and wife over a possible reconveyance, supports petitioner's explanation that the January 1, 1990 date marked only the commencement of discussions concerning a reconveyance.   Also supporting this explanation is the petition itself, which alleges that the first demand for reconveyance was made in 1992, when the husband was advised by his attorneys that he was no longer potentially liable for certain torts, a credible assertion since such potential liability is allegedly the reason why the husband transferred the property to the wife in the first place.

MEMORANDUM DECISION.