Dolan v. Ross

Order unanimously reversed on the law with costs, motion granted and complaint dismissed. Memorandum: The parties were divorced in 1977. The judgment of divorce incorporated, without merger, the terms of a 1976 separation agreement which awarded defendant exclusive use and possession of the marital residence until she remarried. At that time, the house was to be sold, and the proceeds equally divided. Plaintiff gave defendant a quitclaim deed to the property in 1978. The following year he filed a bankruptcy petition, and a few months thereafter, defendant remarried. Plaintiff, upon learning that defendant had listed the property for sale, commenced the subject action in May 1990, seeking an order directing that the property be sold and a declaration that he held a one-half interest in the premises and was entitled to half of the proceeds of the sale. He asserted that the deed was executed with the understanding that his one-half interest in the property would remain unaffected by the conveyance. On appeal, defendant contends that Supreme Court erred in denying her pre-answer motion to dismiss on Statute of Limitations grounds.

*1014The complaint essentially seeks specific performance of that portion of the separation agreement requiring a sale of the property upon defendant’s remarriage, or of the divorce judgment incorporating that agreement and a judgment declaring that plaintiff is entitled to recover a one-half interest in the property. The request for specific performance was not commenced within six years of defendant’s remarriage (see, CPLR 213 [2]; Tauber v Lebow, 65 NY2d 596), and plaintiff failed to demonstrate that he was an owner in possession of the premises within ten years of the commencement of this action for a judgment declaring plaintiff’s right to recover an interest in the property (see, CPLR 212 [a]; James v Lewis, 135 AD2d 785). The action was time-barred and should have been dismissed. (Appeal from Order of Supreme Court, Onondaga County, Miller, J.—Dismiss Complaint.) Present—Denman, J. P., Green, Balio, Lowery and Davis, JJ.