Fiore v. Fiore

• Decision Date: 02 February 1998
• Docket Number: No. 2,No. 1,1,2
• Parties: , 1998 N.Y. Slip Op. 1151 Marjorie FIORE, Plaintiff, v. Alphonso FIORE, Defendant. (Action) Alphonso FIORE, Appellant, v. Marjorie FIORE, Respondent. (Action)
• Court: New York Supreme Court — Appellate Division

Page 662

668 N.Y.S.2d 662

247 A.D.2d 362, 1998 N.Y. Slip Op. 1151

Marjorie FIORE, Plaintiff, v. Alphonso FIORE, Defendant. (Action No. 1.)

Alphonso FIORE, Appellant, v. Marjorie FIORE, Respondent. (Action No. 2.)

Supreme Court, Appellate Division Second Department.

Feb. 2, 1998.

Bijesse & Belford, St. James (John L. Belford, Jr., of counsel), for appellant.

Before SULLIVAN, J.P., and PIZZUTO, SANTUCCI and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by a judgment entered April 24, 1979 (Action No. 1), and an action, inter alia, to impose a constructive trust upon certain real property (Action No. 2), the plaintiff in Action No. 2 appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), dated November 29, 1996, as granted that branch of the motion of the defendant in Action No. 2 which was for summary judgment dismissing the cause of action to impose a constructive trust upon the former marital residence.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly dismissed the appellant former husband's cause of action for the imposition of a constructive trust, which is governed by a six-year Statute of Limitations (see, CPLR 213[1]; Loengard v. Santa Fe Indus., 70 N.Y.2d 262, 519 N.Y.S.2d 801, 514 N.E.2d 113; Lucci v. Lucci, 227 A.D.2d 387, 642 N.Y.S.2d 326; Matter of Wallace, 191 A.D.2d 638, 595 N.Y.S.2d 230). Whether the appellant contends that the former wife wrongfully acquired fee ownership of the subject premises by improperly entering a divorce judgment and recording a deed executed by him in connection with the divorce, or that she thereafter wrongly withheld an ownership interest in the property from him despite their alleged reconciliation, the cause of action to impose a constructive trust on the property accrued in 1979 when all of these events occurred (see generally, Sitkowski v. Petzing, 175 A.D.2d 801, 572 N.Y.S.2d 930). Accordingly, the appellant's assertion of this claim in 1995 clearly was untimely (see, e.g., Matter of Lupoli, 237 A.D.2d 440, 655 N.Y.S.2d 551; Bevilacqua v. Bevilacqua, 233 A.D.2d 471, 650 N.Y.S.2d 972).

In any event, the appellant concedes that he knowingly acquiesced in the transfer of the property to his former wife, and he has neither alleged nor established the requisite elements for the imposition of a constructive...