Loeuis v. GrushinLoeuis v. Grushin
ANTHONY LOEUIS, Respondent, v DENISE GRUSHIN et al., Appellants. [5 NYS3d 283]—
In an action, inter alia, to quiet title pursuant
Ordered that the order is affirmed, with costs.
In his amended complaint, the plaintiff alleges that on May 29, 1992, he and his sister, the defendant Denise Grushin, acquired title to the subject real property whеre the plaintiff resided using only the plaintiff‘s funds. According to the plaintiff, in 2003, he needed money for medical expenses and decided to refinance the mortgage on the subject property to acquire those funds. The defendant Denise Grushin suggested that her husband, the defendant Corey Grushin, handle the transaction, because he was a “real estate professional.” The plaintiff alleges that when he executed the mortgage documents refinancing the property, he was not represented by counsel, and the “defendants slipped a quitclaim deed into the stack of numerous рapers which defendants asked plaintiff to sign in connection with the 2003 Refinance Transaction.” Although that deed, dated May 12, 2003, placed the property in the sole name of the defendant Dеnise Grushin, the plaintiff alleges that his intent was not to convey the property, but rather, to refinance the mortgage.
By deed dated July 18, 2006, Denise Grushin conveyed the property to herself and her husband, аnd placed an additional mortgage on the property for $700,000. The plaintiff alleges that the defendants retained the mortgage proceeds for themselves. The plaintiff also allegеs that he did not learn that he had transferred his interest in the subject property to his sister, and did not learn of the subsequent transactions, until 2010, when he received a notice of default in payments of the
The defendants moved to dismiss the аmended complaint pursuant to
On appeal, the defendants’ primary contention is that the causes of action accrued on May 12, 2003, when the quitclaim deed was executed, and therefore, the commencement of the action on July 1, 2010, over seven years later, was untimely. “On a motion to dismiss pursuant to
The plaintiff alleged both actuаl and constructive fraud. The elements of a cause of action sounding in actual fraud are that the defendant knowingly misrepresented or concealed a material fact for the рurpose of inducing another party to rely upon it, and the other party justifiably relied upon such misrepresentation or concealment resulting in injury (see Levin v Kitsis, 82 AD3d 1051, 1054 [2011], citing Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [2011]). The statute of limitations for actual fraud is six years from the commission of the fraud or two years from the time the plaintiff discovered, or could
The second and third causes of action also allege a constructive fraud based on a breach of a fiduciary duty. The defendants, who are the plaintiff‘s family members, had a fiduciary relationship with him (see Loevner v Loevner, 81 AD3d 791 [2011]; Braddock v Braddock, 60 AD3d 84, 88 [2009]). The statute of limitations for a cause of action alleging a breach of fiduciary duty does not begin to run until the fiduciary has openly repudiated his or her obligatiоn or the relationship has been otherwise terminated (see Incorporated Vil. of Muttontown v Ryba, 121 AD3d 757, 759 [2014]; Westchester Religious Inst. v Kamerman, 262 AD2d 131, 131 [1999]). The defendants’ repudiation of their fiduciary obligation occurred, at the earliest, in 2006, when Denise Grushin conveyed the property to herself and her husband, and they mortgaged the property for $700,000 and took those proceeds. Further, the plaintiff did not suffer damages until 2006, when the defendants encumbered the property with a $700,000 mortgаge without his consent (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 140 [2009]).
The statute of limitations for a cause of action sounding in breach of fiduciary duty is dependent on the relief sought. The Court of Appeals ruled in IDT Corp. v Morgan Stanley Dean Witter & Co. (12 NY3d at 139): “New York law does not provide a single statute of limitations for breach of fiduciary duty claims. Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seеks. Where the remedy sought is purely monetary in nature, courts construe the suit as alleging ‘injury to property’ within the meaning of
The first cause of action, to quiet title pursuant to
The fourth cause of action, alleging conversion based upon fraud, is not time-barred, since it is governed by the statute of limitations set forth in
The fifth cаuse of action, seeking damages for money had and received (see Lebovits v Bassman, 120 AD3d 1198, 1199 [2014]), is equitable in nature and, therefore, the applicable statute of limitations is six years (see North Salem Cent. School Dist. v Mahopac Cent. School Dist., 1 AD3d 418, 419 [2003]). Since the defendаnts’ receipt of money occurred in 2006, and the action was commenced in 2010, the cause of action is not time-barred. Similarly, the sixth cause of action, sounding in unjust enrichment, is equitable in nature, and is not time-barred (see Matter of Equitable Life Assur. Socy. of U.S. v Branch, 32 AD2d 959 [1969]).
The seventh cause of action alleging a constructive trust is equitable in nature and governed by a six-year statute of limitations (see Butt v Malik, 114 AD3d 716, 717 [2014]). The elements of a cause of action to impose a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Sharp v Kosmalski, 40 NY2d 119, 121 [1976]). The cause of action accrued on the date of the “wrongful transfer” of the subject property (Butt v Malik, 114 AD3d at 717). A determination of when the cause of action accrued depends upon whether the constructive trusteе acquired the property wrongfully—in which case the cause of action accrued on the date of acquisition—or whether the constructive trustee wrongfully withheld property acquired lаwfully from the beneficiary—in which case the cause of action accrued when the trustee breached or repudiated the agreement to transfer the property (see Auffermann v Distl, 56 AD3d 502, 502 [2008]). The allеgations in the instant case indicate that the transfer of the property in 2003 from the joint names of the plaintiff and Denise Grushin
The defendants’ remaining contentions are without merit.
Skelos, J.P., Hall, Sgroi and Hinds-Radix, JJ., concur.