Appellate Division of the Supreme Court of New York, 2000

Mazzone v. Mazzone

Appellate Division of the Supreme Court of New York · Decided February 28, 2000

269 A.D.2d 574; 703 N.Y.S.2d 282; 2000 N.Y. App. Div. LEXIS 2109

Cases that cite this one

15 later published cases cite this decision.

Dist. Attorney of N.Y. Cnty. v. Republic of the Phil. (District Court, S.D. Illinois 2018)
Goco v. Ramnani (Appellate Division of the Supreme Court of New York 2009)
Malmsteen v. BERDON, LLP (District Court, S.D. New York 2007)
In re Fischer (District Court, E.D. New York 2004)
Kaufman v. Cohen (Appellate Division of the Supreme Court of New York 2003)
Roberts v. Roberts (Appellate Division of the Supreme Court of New York 2023)
Coombs v. Jervier (Appellate Division of the Supreme Court of New York 2010)
DeLaurentis v. DeLaurentis (Appellate Division of the Supreme Court of New York 2008)
Reiner v. Jaeger (Appellate Division of the Supreme Court of New York 2008)
Morando v. Morando (Appellate Division of the Supreme Court of New York 2007)
Shariff v. Murray (Appellate Division of the Supreme Court of New York 2006)
Eickler v. Pecora (Appellate Division of the Supreme Court of New York 2004)
Pisciotto v. Dries (Appellate Division of the Supreme Court of New York 2003)
Weingard v. O'Donnell (Appellate Division of the Supreme Court of New York 2002)
Clinton Corner H.D.F.C. v. Lavergne (Appellate Division of the Supreme Court of New York 2001)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action pursuant to RPAPL article 15, the plaintiff appeals from an order of the Supreme Court, Kings County, (Vaughan, J.), dated December 3, 1998, which denied her motion for a preliminary injunction, granted the defendant’s cross motion to dismiss the complaint, and, sua sponte, imposed a sanction on her in the sum of $1,000.

Ordered that on the Court’s own motion, the appellant’s notice of appeal from so much of the order as imposed a sanction is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is modified, on the law, by deleting the provision thereof which imposed a sanction in the sum of $1,000 on the plaintiff; as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court properly dismissed the complaint as the plaintiff failed to plead a valid cause of action sounding in fraud. To plead a valid cause of action sounding in fraud, the complaint must set forth all the elements of fraud including the making of material representations by the defendant (see, Garelick v Carmel, 141 AD2d 501). The complaint herein did not contain any allegation that the defendant made any material representations.

To the extent that the complaint may be read to plead a cause of action to impose a constructive trust, it is time-barred. An action to impose a constructive trust is governed by the six-year Statute of Limitations provided by CPLR 213 (1), which “ ‘commences to run upon the occurrence of the wrongful act *575giving rise to a duty of restitution and not from the time the facts constituting the fraud are discovered’ ” (Mattera v Mattera, 125 AD2d 555, 556-557). Here, the action was commenced more than six years after the alleged wrongful transfer of the property.

The Supreme Court, however, improperly imposed a sanction in the sum of $1,000 on the plaintiff, as the order did not set forth the conduct which was the basis of the sanction (see, 22 NYCRR 130-1.2).

The plaintiff’s remaining contentions are without merit. O’Brien, J. P., Krausman, Florio and McGinity, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.