Haggagi v. Hassan

In an action, inter alia, in effect, to impose a constructive trust on, and to compel the conveyance of, real property, the defendant appeals from an order of the Supreme Court, Queens County (Hart, J.), entered November 20, 2002, which denied his motion for summary judgment dismissing the complaint on the ground that it was time-barred. Ordered that the order is affirmed, with costs. The defendant asserted the affirmative defense of the statute of limitations in his answer. Thus, that defense properly formed the basis of his motion for summary judgment (see Pace v Perk, 81 AD2d 444, 456 [1981]). However, he failed to meet his burden of showing his entitlement to judgment on that ground as a matter of law. The defendant failed to make out a prima facie case that the wrongful act the plaintiff complained of occurred in 1989, as the defendant contended (see Jakacic v Jakacic, 279 AD2d 551, 552-553 [2001]; Augustine v Szwed, 77 AD2d 298, 300-301 [1980]; cf. Lucci v Lucci, 227 AD2d 387 [1996]; see generally Gravel v Cicola, 297 AD2d 620 [2002]). Florio, J.P., Townes, Cozier and Mastro, JJ., concur.