Opinion
July 11, 1983
Appeal from the Erie County Surrogate's Court, Mattina, S.
Present — Dillon, P.J., Doerr, Denman, Green and Moule, JJ.
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 A.D.2d 298, 300; Savage v Savage, 63 A.D.2d 808, app dsmd 46 N.Y.2d 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 A.D.2d 837, 839; Matter of Kaminsky, 17 A.D.2d 690, 691, app dsmd 12 N.Y.2d 840).