74 A.D.2d 834 | N.Y. App. Div. | 1980
In a conversion action, plaintiff appeals (1) from an order of the Supreme Court, Queens County, dated July 9, 1979, which denied its motion to strike the affirmative defense of the Statute of Limitations and granted defendant’s cross motion to dismiss the complaint and (2) as limited by its brief, from so much of a further order of the same court, dated October 22, 1979, as, upon reargument, adhered to the original determination. Appeal from order dated July 9, 1979 dismissed as academic. That order was superseded by the order granting reargument. Order dated October 22, 1979 reversed insofar as appealed from, on the law, order dated July 9, 1979 vacated, plaintiff’s motion is granted and defendant’s cross motion is denied. Plaintiff is awarded one bill of $50 costs and disbursements to cover both appeals. The three-year Statute of Limitations applicable in conversion actions (CPLR 214, subd 3) ordinarily runs from the date the conversion takes place. Where a demand is necessary as a condition precedent to commencing an action, as in the case of the wrongful withholding of possession, the time within which the action must be commenced is measured from the time when the right to make the demand is complete (see CPLR 206, subd [a]; Federal Ins. Co. v Fries, 78 Misc 2d 805). Under the facts of this case, plaintiff’s conversion action against defendant was timely. Accordingly, the plaintiff’s motion must be granted and the defendant’s cross motion denied. Hopkins, J. P., Mangano, Gibbons and Rabin, JJ., concur.
