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In the Matter of King

Appellate Division of the Supreme Court of New York, Second Department
May 27, 2003
305 A.D.2d 683 (N.Y. App. Div. 2003)

Opinion

2001-10070

Argued May 12, 2003.

May 27, 2003.

In a discovery proceeding pursuant to SCPA article 21, the petitioner appeals from an order of the Surrogate's Court, Westchester County (Scarpino, S.), dated October 15, 2001, which granted Joseph Gaier's motion to dismiss the proceeding as time-barred.

Bruce A. Langer, New York, N.Y. (Jeffrey Blankstein of counsel), for appellant.

Mauro Goldberg Lilling, LLP, Great Neck, N.Y. (Caryn L. Lilling and Jennifer B. Ettenger of counsel), for respondent-respondent.

Before: SANDRA J. FEUERSTEIN, J.P., SONDRA MILLER, LEO F. McGINITY, STEPHEN G. CRANE, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs payable by the estate.

The petitioner commenced a discovery proceeding pursuant to SCPA article 21. "[C]ourts have likened such a proceeding to an action for conversion or replevin and applied a three-year Statute of Limitations" (Matter of Witbeck, 245 A.D.2d 848, 849; see Matter of Neshewat, 237 A.D.2d 524, 525). The three-year statute of limitations period (see CPLR 214) normally runs from the date the conversion allegedly took place. 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 (see D'Amico v. First Union Natl. Bank, 285 A.D.2d 166, 172; Berman v. Goldsmith, 141 A.D.2d 487).

Here, the initial transfer of estate property to Joseph Gaier was unauthorized and unlawful. Thus, the petitioner's cause of action accrued at the time of the transfer, which was between 1984 and 1986. Since the petitioner did not commence this proceeding until 1995, her claim to recover possession of the property is time-barred.

FEUERSTEIN, J.P., S. MILLER, McGINITY and CRANE, JJ., concur.


Summaries of

In the Matter of King

Appellate Division of the Supreme Court of New York, Second Department
May 27, 2003
305 A.D.2d 683 (N.Y. App. Div. 2003)
Case details for

In the Matter of King

Case Details

Full title:IN THE MATTER OF VIVIEN KING, DECEASED. NANCY KING, appellant; JOSEPH…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 27, 2003

Citations

305 A.D.2d 683 (N.Y. App. Div. 2003)
759 N.Y.S.2d 895

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