Malmeth v. Malmeth

—In an action to impose a constructive trust upon real property and to compel a conveyance of that property, defendants appeal from an order of the Supreme Court, Nassau County, dated March 2, 1979, which denied their motion to dismiss the complaint. Order reversed, on the law, with $50 costs and disbursements, motion granted and complaint dismissed. This is an action wherein plaintiff, as administratrix of the estate of her deceased husband, seeks to impose a constructive trust upon a one-third interest in certain real property, and further seeks to compel a conveyance of that one-third interest to herself, as administratrix. The operative facts upon which the claim of constructive trust is based occurred on October 19, 1971, the date of the conveyance of the property to the defendants. The cause of action, therefore, accrued on that date (see Scheuer v Scheuer, 308 NY 447; Goldrick v Goldrick, 99 Mise 2d 749). A summons and a complaint in an earlier action, brought by plaintiff erroneously in her own behalf, had been served on February 28, 1976. A motion to dismiss that action had been denied in an order dated July 11, 1978; however, the order provided "in the alternative” that there be a "substitution of the proper plaintiff, i.e., the legally appointed representative of the decedent Benjamin Malmeth.” The court further directed that "all proceedings in this matter are hereby stayed for a period of ninety (90) days from the date of this order to allow the substitution of the proper plaintiff herein.” The so-called amended summons and complaint, with plaintiff as administratrix of the estate of Benjamin Malmeth, was not served until January 29, 1979. In view of the accrual of this action on October 19, 1971, such service was untimely (see Goldberg v Camp Mikan-Recro, 42 NY2d 1029), the action is time barred and the motion to dismiss the complaint must be granted. In view of the foregoing we do not address ourselves to the other ground urged by appellants, i.e., the Statute of Frauds. Mollen, P. J., Titone, O’Connor and Shapiro, JJ., concur.