Dingeo v. Santiago

Apr 19, 1982
Versions:87 A.D.2d 859
449 N.Y.S.2d 296
1982 N.Y. App. Div. LEXIS 16342

In an action, inter alia, to impress a constructive trust on certain real property, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated June 30, 1981, as granted the branch of defendant’s motion which sought to dismiss as time barred the cause of action to impress a constructive trust. Order reversed insofar as appealed from, on the law, without costs or disbursements, and the fourth cause of action of the amended complaint is reinstated. The allegations in the fourth cause of action of the plaintiff’s amended complaint are sufficient to set forth an action to impress a constructive trust. (See Sharp v Kosmalski, 40 NY2d 119.) The plaintiff alleges that the defendant first repudiated her promise to retransfer the subject real property in 1978. That being so, the defendant’s retention of title to the premises did not become adverse until that time. Consequently, the plaintiff has instituted his suit to impress a constructive trust within the time required by the Statute of Limitations (CPLR 213, subd 1) and it was error to dismiss the claim as time barred. While no issue has been presented with respect to the dismissal of the first three causes of action as time barred, the factual allegations set forth therein which are applicable to the fourth cause of action shall remain in full force and effect. Damiani, J. P., Lazer, Brown and Niehoff, JJ., concur.