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Assing v George (2004 NY Slip Op 50896(U))
[*1]


Decided on June 22, 2004
Supreme Court, Kings County

39996/02
Ira B. Harkavy, J.
Upon the foregoing papers, defendants Aldwin George (Aldwin), Barbara George (Barbara) and Ossie Jackie (Ossie) move for an order, pursuant to CPLR 3211 (a) (5) and (a) (7), dismissing the complaint of plaintiff Sandra Assing. Plaintiff cross-moves for an order granting summary judgment imposing a constructive trust on the subject real property and for a further order directing the defendants to convey to plaintiff a twenty-five percent interest in such property.
All four parties reside in a building located at 608 Jerome Avenue in Brooklyn. Aldwin, who is married to Barbara, is plaintiff's father. Ossie is Barbara's son from a prior marriage. Said building was purchased in September 1987 by Aldwin, Barbara and Ossie, with each holding an equal ownership interest in the property. Plaintiff alleges that at the time of purchase, she gave Aldwin $8,000 in cash to be used toward the down payment, with the understanding that she would be an equal co-owner of the property. Plaintiff asserts that Aldwin told her that she could not be named
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on the deed at the time of purchase since she was not a legal resident, but that he [*2]would add her name as an equal co-owner as soon as she obtained resident status. On June 20, 1994, plaintiff received her "green card." In September 2002, plaintiff commenced this action.
At her deposition, plaintiff asserted that as soon as she obtained the green card, she spoke with her father and requested that he add her name to the deed. She stated that her father replied that he would "look into" placing her name on the deed. Plaintiff lived in the basement apartment of the building from the time of purchase in 1987 and paid approximately $460 per month to Aldwin. Plaintiff characterizes the payments as her share of the monthly mortgage; defendants claim that plaintiff paid rent for her apartment. Plaintiff ceased making payments several years ago as a result of the within dispute. Defendants commenced an action to evict plaintiff at some point in 2002.
In their motion to dismiss, defendants argue that plaintiff's claim is time-barred pursuant to the six-year statute of limitations outlined in CPLR 213 (1), that plaintiff's claim is barred because it is based on an illegal agreement paid for with illegal funds, and that plaintiff has not shown the prima facie elements of a constructive trust against all of the defendants. In her cross motion, plaintiff alleges that she has presented a prima facie case for a constructive trust, since all parties unjustly benefitted from her financial contributions to the purchase and maintenance of the property, and that her claim is not time-barred because the statute of limitations period did not begin to run until defendants attempted to have her evicted in 2002.
"The elements needed for the imposition of a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment" (Cerabono v Price, ___AD3d___, 775 NYS2d 585 [2004]). Here, the allegations in plaintiff's complaint are sufficient to make out a cause of action for a constructive trust on the property. Such cause of action is governed by the six-year statute of limitations set forth in CPLR 213 (1). Such period begins to run "upon the occurrence of the wrongful act giving rise to a duty of restitution" (Krauss v Iliescu, 259 AD2d 468, 469 [1999], quoting Sitkowski v Petzing, 175 AD2d 801, 802 [1991]). While plaintiff alleges that the wrongful act did not occur until the defendants attempted to evict her, defendants allege that the statute of limitations began to run on June 20, 1994, when plaintiff received her green card.
The wrongful act complained of in this case is Aldwin's refusal to honor his alleged promise to plaintiff to add her name to the deed after she received her green card. In Lucci v Lucci (227 AD2d 387 [1996]), a husband promised to transfer real property from his name to his and his wife's names when they married. The court found that the wrongful act occurred on their wedding date, "because
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it was then that the husband repudiated his promise to transfer the property" (id.). Similarly, Aldwin repudiated his promise to plaintiff as of the date she obtained her green card, on June 20, 1994. Since the cause of action accrued more than six years before the instant action was commenced, plaintiff's action is time-barred, rendering the remainder of the parties' claims academic.
Accordingly, defendants' motion to dismiss the complaint as untimely pursuant to CPLR 3211
(a) (5) is granted and the complaint is dismissed. Plaintiff's cross motion is denied in its entirety. The foregoing constitutes the decision, order and judgment of the court. E N T E R,

J. S. C. [*3]
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