In re Sroczyk

Appellate Division of the Supreme Court of New York

In re Sroczyk

96 A.D.2d 749, 465 N.Y.S.2d 323, 1983 N.Y. App. Div. LEXIS 19343

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 11, 1983

StatusPublished

Cited by3 cases

This text of 96 A.D.2d 749 (In re Sroczyk) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Sroczyk, 96 A.D.2d 749, 465 N.Y.S.2d 323, 1983 N.Y. App. Div. LEXIS 19343 (N.Y. Ct. App. 1983).

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Opinion

— Order unanimously affirmed, with costs. Memorandum: In this proceeding brought by the administrator of decedent’s estate to discover property (SCPA 2103), Surrogate’s Court properly denied respondent’s motion for summary judgment. Although an action for a constructive trust has a six-year Statute of Limitations (Augustine v Szwed, 77 AD2d 298, 300; Savage v Savage, 63 AD2d 808, app dsmd 46 NY2d 771), the cause of action does not accrue until the wrongful withholding {Augustine v Szwed, supra, p 301). Since decedent signed the withdrawal slip transferring her bank account to respondent, the wrongful withholding, if any, did not occur at the moment of transfer in 1972, but rather in 1980 when decedent died. Therefore, the Statute of Limitations is no bar to the instant proceeding. Surrogate’s Court properly concluded that, since an issue of title is raised, that issue shall be tried as a litigated issue (SCPA 2104, subd 1), particularly since respondent claims title by way of a gift (see Matter of Camarda, 63 AD2d 837, 839; Matter of Kaminsky, 17 AD2d 690, 691, app dsmd 12 NY2d 840). (Appeal from order of Erie County Surrogate’s Court, Mattina, S. — summary judgment.) Present — Dillon, P. J., Doerr, Denman, Green and Moule, JJ.

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— Order unanimously affirmed, with costs. Memorandum: In this proceeding brought by the administrator of decedent’s estate to discover property (SCPA 2103), Surrogate’s Court properly denied respondent’s motion for summary judgment. Although an action for a constructive trust has a six-year Statute of Limitations (Augustine v Szwed, 77 AD2d 298, 300; Savage v Savage, 63 AD2d 808, app dsmd 46 NY2d 771), the cause of action does not accrue until the wrongful withholding {Augustine v Szwed, supra, p 301). Since decedent signed the withdrawal slip transferring her bank account to respondent, the wrongful withholding, if any, did not occur at the moment of transfer in 1972, but rather in 1980 when decedent died. Therefore, the Statute of Limitations is no bar to the instant proceeding. Surrogate’s Court properly concluded that, since an issue of title is raised, that issue shall be tried as a litigated issue (SCPA 2104, subd 1), particularly since respondent claims title by way of a gift (see Matter of Camarda, 63 AD2d 837, 839; Matter of Kaminsky, 17 AD2d 690, 691, app dsmd 12 NY2d 840). (Appeal from order of Erie County Surrogate’s Court, Mattina, S. — summary judgment.) Present — Dillon, P. J., Doerr, Denman, Green and Moule, JJ.

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Bluebook (online)

96 A.D.2d 749, 465 N.Y.S.2d 323, 1983 N.Y. App. Div. LEXIS 19343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sroczyk-nyappdiv-1983.

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