ZANE v. MINION

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Supreme Court, Appellate Division, Second Department, New York.

James B. ZANE, appellant, v. Jane MINION, a/k/a Jane Minion Zane, respondent.

Decided: June 30, 2009

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and L. PRISCILLA HALL, JJ. Epstein Becker & Green, P.C., New York, N.Y. (Barry A. Cozier of counsel), for appellant. Michael T. Sucher, Brooklyn, N.Y. (Andrew M. Shabasson and Danielle E. Sucher of counsel), for respondent.

In an action, inter alia, to impose a constructive trust upon certain real property and to recover damages for unjust enrichment, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), entered December 4, 2008, as granted those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the fourth and fifth causes of action for failure to state a cause of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the fourth and fifth causes of action are denied.

 In deciding a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept all of the facts alleged in the pleading to be true, and accord the plaintiff the benefit of every possible favorable inference in determining whether the allegations fit under any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).   In order to state a cause of action to impose a constructive trust, a plaintiff must allege (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Simonds v. Simonds, 45 N.Y.2d 233, 242, 408 N.Y.S.2d 359, 380 N.E.2d 189;  Nastasi v. Nastasi, 26 A.D.3d 32, 37, 805 N.Y.S.2d 585).

 Here, the plaintiff alleged that in exchange for conveying a one-half interest in his real property to his wife, the defendant, she agreed to consent to the refinancing of two mortgages on the property and, thereafter, to reconvey her interest to him by naming him as the beneficiary of her interest in the property in her will or, should she survive him, as he designated in his will (see Iwanow v. Iwanow, 39 A.D.3d 476, 834 N.Y.S.2d 251;  Leire v. Anderson-Leire, 22 A.D.3d 944, 946, 802 N.Y.S.2d 762;  Onorato v. Lupoli, 135 A.D.2d 693, 695, 522 N.Y.S.2d 593;  Tomaino v. Tomaino, 68 A.D.2d 267, 269, 416 N.Y.S.2d 925).   In reliance on those promises, the plaintiff allegedly transferred a one-half interest in the property to the defendant (see Leire v. Anderson-Leire, 22 A.D.3d at 946, 802 N.Y.S.2d 762).   Approximately 10 years later, the defendant refused the plaintiff's request that she consent to the refinancing of the mortgages.   In addition, the defendant informed the plaintiff that she had revoked her will leaving her one-half interest in the property to him or, should she survive him, as he designated in his will.   As a result of the defendant's alleged breach of her promises, the plaintiff alleged, the defendant was unjustly enriched, receiving a one-half interest in the property and the benefit of its appreciation from the $1.7 million in improvements he had made to it.   Contrary to the Supreme Court's determination, these allegations state a cause of action to impose a constructive trust and to recover damages for unjust enrichment (see Leire v. Anderson-Leire, 22 A.D.3d at 946, 802 N.Y.S.2d 762).   Contrary to the defendant's contention, the deed, which indicates that the property was transferred for minimal consideration, does not conclusively establish that the conveyance was an unconditional gift (see Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511).   Accordingly, the Supreme Court should have denied those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the fourth and fifth causes of action.

 The defendant's first alternative argument for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241), that those branches of its motion which were pursuant to CPLR 3211(a)(5) to dismiss the fourth and fifth causes of action as time-barred, should have been granted, is without merit.   The equitable claim to impose a constructive trust is governed by a six-year statute of limitations (see CPLR 213[1];  Auffermann v. Distl, 56 A.D.3d 502, 867 N.Y.S.2d 527;  Reiner v. Jaeger, 50 A.D.3d 761, 855 N.Y.S.2d 613;  Jakacic v. Jakacic, 279 A.D.2d 551, 719 N.Y.S.2d 675).  “ ‘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’ ” (Jakacic v. Jakacic, 279 A.D.2d at 551, 719 N.Y.S.2d 675, quoting Sitkowski v. Petzing, 175 A.D.2d 801, 802, 572 N.Y.S.2d 930).

 Here, the plaintiff's claim accrued when the defendant allegedly failed to honor her promises, which, according to the complaint, occurred in late 2005 or early 2006.   Since the action was commenced in January 2008, the causes of action to impose a constructive trust and to recover damages for unjust enrichment are not barred by the statute of limitations (see Panish v. Panish, 24 A.D.3d 642, 643, 808 N.Y.S.2d 325;  Jakacic v. Jakacic, 279 A.D.2d at 552-553, 719 N.Y.S.2d 675;  Lyons v. Quandt, 91 A.D.2d 709, 710, 457 N.Y.S.2d 615).

The defendant's second alternative argument for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d at 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241) is without merit.

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