     15-4100
     Wallace Wood Properties, LLC v. Wood

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
     RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
     ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
     OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   27th day of September, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            BARRINGTON D. PARKER,
 8                          Circuit Judges,
 9
10                JANE A. RESTANI,*
11                              Judge.
12
13   - - - - - - - - - - - - - - - - - - - -X
14   WALLACE WOOD PROPERTIES, LLC,
15            Plaintiff-Appellant,
16
17                -v.-                                           15-4100
18
19   TATJANA WOOD,
20            Defendant-Appellee.
21
22   - - - - - - - - - - - - - - - - - - - -X
23
24   FOR APPELLANT:                          PATRICK C. CARROLL, Law Offices of
25                                           Patrick C. Carroll, Carle Place, NY

           *   The Honorable Jane A. Restani, Judge for the United
     States Court of International Trade, sitting by designation.
                                                1
 1                                (Patricia L. Minoux, North Miami
 2                                Beach, FL on the brief).
 3
 4   FOR APPELLEE:                JOEL L. HECKER, Abrams Deemer PLLC,
 5                                New York, NY.
 6
 7        Appeal from a judgment of the United States District Court
 8   for the Southern District of New York (Swain, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
11   DECREED that the judgment of the district court be AFFIRMED.
12
13        Wallace Wood Properties, LLC, (“WWP”) appeals from the
14   judgment of the United States District Court for the Southern
15   District of New York (Swain, J.) dismissing its complaint, which
16   alleges conversion and replevin and seeks damages and the return
17   of artwork allegedly in the possession of the artist’s ex-wife.
18   We assume the parties’ familiarity with the underlying facts,
19   the procedural history, and the issues presented for review.

20        Wallace Wood was a comic book artist and illustrator. He
21   and defendant divorced in the 1960s, and Wallace Wood died in
22   1981. Wood’s will bequeathed his “bank accounts, whether
23   savings, checking, Certificates of Deposit, or otherwise” to
24   his ex-wife, and “[all] the rest, residue and remainder of [the]
25   estate, inclusive of but not limited to . . . art work, whether
26   published or unpublished,” to his friend John H. Robinson.
27   Second Am. Compl. (“SAC”) ¶¶ 12-13.

28        In 2006, Wallace Wood’s biographer, J. David Spurlock,
29   visited Tatjana Wood in her home and saw Wallace Wood artwork
30   in her possession. Id. ¶ 25. In 2009, he saw a copy of Wallace
31   Wood’s will. Id. ¶ 22. In December 2011, he formed WWP--of
32   which he is the “sole member and manager.” Id. ¶¶ 19, 21. In
33   February 2012, Robinson assigned all interest in Wallace Wood’s
34   property and copyrights to WWP, id. ¶ 16, in exchange for WWP’s
35   agreement “to furnish, without charge, to John H.
36   Robinson, . . . duplicate copies of any publications made by
37   it . . . relating to the works of the said Wallace Wood.”
38   Appellant’s App. A040. In March 2013, Spurlock demanded from
39   Tatjana Wood the artwork he had seen in her home in 2006. She
40   refused, and this suit was filed on October 28, 2014, alleging

                                    2
 1   that the artwork had been in the possession of Marvel Comics
 2   but remained the property of Wallace Wood (and then of his estate
 3   and eventually of WWP), that Marvel wrongly sent it to Tatjana
 4   Wood in 2005, and that she wrongly kept it.

 5        The district court dismissed under Federal Rule of Civil
 6   Procedure 12(b)(6), citing the statute of limitations bar. The
 7   district court did not reach the defendant’s arguments that the
 8   claims are barred by laches and that WWP failed to plausibly
 9   allege ownership of sufficiently specific property. This
10   appeal followed.

11        We review de novo the district court’s dismissal of a
12   complaint pursuant to Rule 12(b)(6), accepting all factual
13   allegations in the complaint as true and drawing all reasonable
14   inferences in the plaintiff’s favor. Chambers v. Time Warner,
15   Inc., 282 F.3d 147, 152 (2d Cir. 2002). Granting a motion to
16   dismiss on the basis of a lapsed limitations period is proper
17   when it is clear on the face of the complaint that a claim is
18   untimely. Harris v. City of New York, 186 F.3d 243, 250 (2d Cir.
19   1999).

20        The limitations period for conversion and replevin claims
21   in New York is three years. Hoelzer v. City of Stamford, 933
22   F.2d 1131, 1136 (2d Cir. 1991); New York v. Seventh Regiment Fund
23   Inc., 98 N.Y.2d 249, 258 (2002). The present complaint was filed
24   on October 28, 2014; so it is only timely if the pleaded claims
25   accrued on or after October 28, 2011. A conversion action
26   ordinarily accrues immediately upon the wrongful exercise of
27   dominion over another’s property. 98 N.Y.2d at 259-60. In some
28   circumstances New York’s demand-and-refusal rule delays the
29   accrual of a claim until the plaintiff has demanded return of
30   the property and been refused, id. at 260, in order to put
31   good-faith purchasers of stolen property on notice that
32   “continued possession will be regarded as wrongful by the true
33   owner.” SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 183
34   (2d Cir. 2000). But demand is not necessary “for the accrual
35   of a conversion claim against a possessor who openly deals with
36   the property as [her] own,” id., or when demand would be futile,
37   as, for instance, when the defendant is a thief. Seventh
38   Regiment, 98 N.Y.2d at 260.


                                    3
 1        WWP argues for the demand-and-refusal rule, because WWP
 2   specifically alleged that Tatjana Wood is not a thief, SAC ¶ 84,
 3   so its claims did not accrue until it demanded (through Spurlock)
 4   the artwork in 2013 and Wood refused its demand. Its complaint,
 5   however, is permeated by allegations that Wood knew she was not
 6   the rightful owner of the art: that she “had knowledge of the
 7   terms of the Will,” id. ¶ 42, “knew that the actual owner of
 8   the Original Artwork was . . . not her,” id. ¶ 88, “fraudulently
 9   concealed the identity, location and possession of the Original
10   Artwork,” id. ¶ 89, etc.

11        Moreover, it is clear from the face of the complaint that
12   Wood openly dealt with the artwork as her own at least as early
13   as 2006, when she displayed it to Spurlock in her home, id. ¶ 25,
14   and certainly no later than “in or around 2010,” when she sold
15   two pieces to Spurlock. Id. ¶ 115. Any cause of action
16   therefore must have accrued long before October 28, 2011, and
17   was already time-barred when the complaint was filed in 2014.

18        Accordingly, and finding no merit in plaintiffs’ other
19   arguments, we hereby AFFIRM the judgment of the district court.

20                                 FOR THE COURT:
21                                 CATHERINE O’HAGAN WOLFE, CLERK
22




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