Jung v. Reiner & Kaiser Assocs.

220 A.D.3d 643

198 N.Y.S.3d 106

Sunyoung JUNG, etc., appellant,

v.REINER & KAISER ASSOCIATES, et al., defendants,Lauren Rosen, etc., et al., respondents.

2020-04775

Index No. 716240/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 4, 2023

October 4, 2023

Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens, NY (Dustin Bowman and Matthew J. Routh of counsel), for appellant.

Graubard Miller, New York, NY (Lawrence D. Bernfeld and Caryn L. Marcus of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LILLIAN WAN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph Risi, J.), entered May 14, 2020. The order, insofar as appealed from, granted those branches of the motion of the defendants Lauren Rosen, as trustee of Lauren Rosen Revocable Trust, Cynthia Knight, Arlene Putterman, David McGinnis, and Richard Putterman which were pursuant to CPLR 3211(a) to dismiss so much of the cause of action alleging conversion as sought to recover funds allegedly converted prior to October 24, 2015, and the cause of action alleging breach of contract insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 1967, Warren H. Reiner and Ray Kaiser formed Reiner & Kaiser Associates (hereinafter the partnership) in order to acquire, own, and develop property in Forest Hills. Reiner and Kaiser signed a partnership agreement that allocated them each a 50% share of the partnership. In the early 1980s, Reiner retained Steven Dym of Gabriel Management Corp. to manage properties for the partnership.

Reiner died in 2000. Pursuant to the partnership agreement and his will, Reiner's 50% interest in the partnership was conveyed in varying percentages to the Lauren Rosen Revocable Trust, Cynthia Knight, Martin Selikoff, Mark Fleischman, Denise Fleischman, Arlene Putterman, and Richard Putterman.

In 2010, David McGinnis began to manage the assets of the partnership on behalf of Lauren Rosen. McGinnis, Lauren Rosen, and her husband Lester Rosen allegedly directed Dym to pay McGinnis $1,500 monthly as a management fee. The plaintiff asserts that in January 2011, Kaiser discovered that McGinnis was receiving a monthly management fee and demanded the same monthly fee, which he received from February 2011 until December 2012. Due to a judgment against him in an unrelated action, Kaiser's $1,500 fee and 50% distribution were retained in Dym's escrow account until December 2017.

In July 2015, Kaiser died, and the plaintiff was appointed the administrator of his estate. In October 2018, the plaintiff commenced this action against, among others, Lauren Rosen, as trustee of Lauren Rosen Revocable Trust, Knight, Arlene Putterman, McGinnis, and Richard Putterman (hereinafter collectively the defendants), alleging, inter alia, conversion and breach of contract, based on a breach of a verbal partnership agreement. The defendants thereafter moved, among other things, pursuant to CPLR 3211(a) to dismiss, as time-barred, so much of the cause of action alleging conversion as sought to recover funds allegedly converted prior to October 24, 2015, and the cause of action alleging breach of the verbal partnership agreement insofar as asserted against them. In an order entered May 14, 2020, the Supreme Court, inter alia, granted those branches of the defendants’ motion. The plaintiff appeals.

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to bring that cause of action has expired, whereupon the burden shifts to the plaintiff to raise a question of fact (see Siegler v. Lippe, 189 A.D.3d 903, 904, 137 N.Y.S.3d 429 ). Pursuant to CPLR 214(3), "[a] cause of action to recover damages for conversion is subject to a three-year limitation period" ( Siegler v. Lippe, 189 A.D.3d at 904, 137 N.Y.S.3d 429 ). A cause of action alleging conversion "accrues and the limitations period begins to run on the date the conversion allegedly occurred" ( Matter of Asch, 164 A.D.3d 787, 788, 83 N.Y.S.3d 307 ). However, "where possession is originally lawful, a conversion does not occur until the owner makes a demand for the return of the property and the person in possession of the property refuses to return it" ( Siegler v. Lippe, 189 A.D.3d at 904, 137 N.Y.S.3d 429 ).

Here, the defendants established, prima facie, that so much of the cause of action alleging conversion as sought to recover funds allegedly converted prior to October 24, 2015, three years prior to the commencement of this action, is time-barred (see Mohrman v. Johns, 210 A.D.3d 1075, 1077, 179 N.Y.S.3d 293 ). In opposition, the plaintiff failed to raise a question of fact as to whether the...