Mattera v. MatteraMattera v. Mattera
— In аn action for a divorce and ancillary relief, (1) the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Buell, J.), entered December 20, 1985, as denied those branches of their motion to dismiss the plaintiff’s third cause of action for rescission of a deed, or, in the alternative, for summary judgment dismissing that cause of action, for summary judgment on the defendant Theresa Mattera’s second counterclaim seeking, inter alia, immediate possession of the property located at 56 Ridgewood Terrace, Chappaqua, New York, and an аward of damages for
Ordеred that the order is modified, on the law, by deleting the provision which dismissed so much of the fifth cause of action as sought the imposition of a construсtive trust, and substituting therefor a provision denying in its entirety that branch of the defendants’ motion which sought dismissal of so much of the fifth cause of action as sought thе imposition of a constructive trust. As so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.
The principal issues рresented on this appeal and cross appeal concern the title of two parcels of real property referred tо, respectively, as the "56 Ridgewood Terrace” property and the "41 Maple Avenue” property, both of which are located in Chaрpaqua, New York. In this regard, we are also called upon to consider whether the plaintiff husband is entitled to have a constructive trust imposed on these two properties as demanded in his amended complaint. We find that it was error to dismiss so much of the fifth cause of action as sought thе imposition of a constructive trust on the 41 Maple Avenue property which, allegedly, was fraudulently conveyed to the defendant Theresa Ann Mattera in 1980 by using the plaintiff’s funds. Initially, we observe that the defendants did not seek this relief in their moving papers. In any event, the cause of action was sufficiently pleaded. A constructive trust is an equitable remedy which may be imposed whenever necessary to satisfy the demands of justice (see, Simonds v Simonds,
With respect to the 56 Ridgewood Terrace property, the allegations of the amended complaint were sufficient to preclude the dismissal of the sixth сause of action for a constructive trust on that property. However, that claim was barred by the Statute of Limitations. An action to impress а constructive trust is governed by the six-year Statute of Limitations period provided under
Turning to the defendants’ motion for summary judgment dismissing the plaintiff’s third cause of aсtion, we find no merit to the defendants’ contention that the plaintiff failed to set forth sufficient details in his amended complaint to meet the pleаding requirements of
Special Term alsо properly denied summary judgment upon the third cause of action on the ground that several triable issues of fact exist with respect to the plaintiff’s fraud claim. Summary judgment is a drastic remedy and should not be granted if there is any doubt as to the existence of a genuine triable issue of fact (see, Sillman v Twentieth Century-Fox Film Corp.,
It must be noted, however, that no challenge has been made to the genuineness of Wanda Mattera’s signature on the deed. Therefore, Theresa Ann Mattera is entitled to share jointly with her father the possession of the subject house. Even if the summary judgment motion on this issue were resolved in the plaintiff’s favor and the deed transferring the property were found to be void, Theresa Ann Mattera would remain a tenant in common with the plaintiff with respect to the rights to possession (see, Son Fong Lum v Antonelli,
Finally, the plaintiff’s third cause of action is not time barred.
We have considered the parties’ remaining contentions and find them to be without merit. Thompson, J. P., Niehoff, Eiber and Spatt, JJ., concur.