Richard B. Soscia et al., Appellants, v Anthony M. Soscia, Jr., et al., Respondents.
Supreme Court, Appellate Divisiоn, Second Department, New York
829 NYS2d 543
Ordered that the order is affirmed, with one bill of costs.
In 1979, the plaintiff Karen Soscia (hereinafter Karen) аnd her father-in-law, Anthony Soscia, Sr. (hereinafter, Anthony Sr.), acquired 56 acres of undeveloped land in Campbell Hаll, Orange County (hereinafter the property), as tenants in common. The plaintiffs allege that Karen and her husband, the plaintiff Richard B. Soscia (hereinafter Richard) intended to use the property as a primary residenсe, and that Anthony Sr. wanted to help them and promised that he would convey his interest to Karen upon her request. Karen and Richard thereafter built a home on the property and have lived there continuously for more than 20 years, allegedly spending more than $1.8 million on mortgage payments, taxes, maintenance, and improvеments to the property.
Karen and Richard, joined by Richard's brother John Soscia (hereinafter John), allege that Anthony Sr. attempted to transfеr his share to Karen in or about 1988, but that the defendant Anthony Soscia, Jr. (hereinafter Anthony Jr.) prevented him from completing the transfer to Karen. On January 4, 1988 Anthony Jr. commenced a proceeding in Bronx County seeking
On June 26, 1989, Anthony Jr.'s law firm, the defendant Schiavetti, Begos & Nicholson, now known as Schiavetti, Corgan, Soscia, DiEdwards & Nicholson (hereinafter the Schiavetti firm), filed a notice of pendency in the Orange County Clerk's office stating that the conservatorship proceeding pertaining to Anthony Sr. would affect the property.
The plaintiffs allege that Anthony Jr. thereafter exercised undue influence ovеr Amelia to cause her to execute a new will naming him as the primary beneficiary of her estate, and tо transfer her interest in the property to a trust that ultimately would benefit him. The trust agreement directs the trustee to sеll any interest in the property owned by the trust within five years after Amelia's death, and to distribute the first $100,000 of proceеds to the defendant Robert J. Soscia (hereinafter Robert) and the remainder to Anthony Jr. Amelia died on September 16, 2001 and the instant action to quiet title was commenced on October 17, 2003.
The defendants moved to dismiss the complaint pursuant to
As to the Judiciary Law and prima facie tort causes of action, the defendants met their prima facie burdens of showing that the time in which to sue had expired, and in opрosition the plaintiffs failed to "aver evidentiary facts establishing that the case falls within an exception tо the Statute of Limitations" (Savarese v Shatz, 273 AD2d 219 [2000] [internal quotation marks omitted]; see Pate v Pate, 17 AD3d 334 [2005]; Green v Albert, 199 AD2d 465 [1993]). Accordingly, the first and second causes of action were properly dismissed as time-barred. The
The court also properly determined that neither Richard nor John has standing to maintain an action to quiet title pursuant to
As to Karen, the amended complaint, construed liberally in her favor, at best sets forth an equitable claim on her behalf for imposition of а constructive trust over the one-half interest which Anthony Sr. allegedly promised and intended to transfer to her (see Nastasi v Nastasi, 26 AD3d 32, 36-39 [2005]; Salatino v Salatino, 13 AD3d 512, 513 [2004]; see generally Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Simonds v Simonds, 45 NY2d 233, 241-242 [1978]). However, to the extent that the amended complaint may be read to plead a cause of action to impose a constructive trust, it is time-barred. "An action to impose a constructive trust is governed by the six-year Statute of Limitations provided by
Goldstein, J.P., Skelos, Lunn and Covello, JJ., concur.