                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     517914
________________________________

TORRANCE CONSTRUCTION, INC.,
                    Appellant-
                    Respondent,
      v                                     MEMORANDUM AND ORDER

LAWRENCE R. JAQUES et al.,
                    Respondents-
                    Appellants.
________________________________


Calendar Date:   February 17, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      Law Office of James M. Brooks, Lake Placid (Allison M.
McGahay of counsel), for appellant-respondent.

      Briggs Norfolk, LLP, Lake Placid (Michael J. Hutter of
Powers & Santola, LLP, Albany, of counsel), for respondents-
appellants.

                             __________


McCarthy, J.P.

      Cross appeals from an order of the Supreme Court (Muller,
J.), entered October 28, 2013 in Essex County, which, among other
things, partially granted defendant Elizabeth W. Jaques' motion
to dismiss the complaint.

      Defendant Lawrence R. Jaques (hereinafter Jaques) was
plaintiff's bookkeeper for approximately 10 years and, between
April 2006 and November 2012, allegedly stole at least $450,000
from plaintiff, primarily by charging personal purchases to
plaintiff's business accounts. Plaintiff commenced this action
alleging that Jaques and his wife, defendant Elizabeth W. Jaques
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(hereinafter defendant), jointly participated in this scheme, as
many of the purchases were delivered to defendants' home and were
used to make improvements to the home. The complaint set forth
causes of action for (1) conversion, (2) award of title to
defendants' home, (3) moneys had and received, (4) breach of
fiduciary duty and constructive trust, and (5) an accounting.
Plaintiff also filed a notice of pendency with respect to
defendants' home. Jaques answered. Defendant moved to dismiss
pursuant to CPLR 3211 (a) (1), (5) and (7) and to cancel the
notice of pendency.

      Supreme Court denied defendant's motion as to the first,
third and fifth causes of action, but dismissed the second and
fourth causes of action against both defendants and cancelled the
notice of pendency. The court also held that defendant was
equitably estopped from interposing any statute of limitations
defense. Plaintiff appeals and defendants cross-appeal. We will
address the causes of action in the order in which they were
pleaded, then the statute of limitations defense and the
cancellation of the notice of pendency.

      Plaintiff properly stated a cause of action against
defendant for aiding and abetting conversion. On a motion to
dismiss for failure to state a cause of action, courts assume the
facts alleged to be true, view them liberally and in the light
most favorable to the plaintiff, and assess whether the
allegations set forth all of the elements of any cognizable cause
of action, even if the plaintiff has not properly labeled that
cause of action (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
"Conversion is an unauthorized exercise of dominion and control
over" someone else's property that "interferes with and is in
defiance of the superior possessory right of the owner or another
person" (Miller v Marchuska, 31 AD3d 949, 950 [2006] [citations
omitted]). A claim can exist for aiding and abetting conversion
if the aider-abettor has actual knowledge that the person who
directly converted the plaintiff's property did not own that
property (see Weisman, Celler, Spett & Modlin v Chadbourne &
Parke, 271 AD2d 329, 330 [2000], lv denied 95 NY2d 760 [2000];
Lenczycki v Shearson Lehman Hutton, 238 AD2d 248, 248 [1997], lv
dismissed and denied 91 NY2d 918 [1998]; H2O Swimwear v Lomas,
164 AD2d 804, 805, 807 [1990]). Here, the complaint alleges that
                              -3-                517914

defendant knew of and acquiesced in Jaques' unauthorized personal
purchases from plaintiff's accounts, that the purchased items
were delivered to and used to improve defendants' home, and that
defendant accepted the benefits of these converted items. These
allegations stated a cause of action against defendant for aiding
and abetting conversion.

      New York does not recognize a cause of action for "title,
use and exclusive possession" of someone else's residence. To
the extent that the complaint's second cause of action can be
read to allege conversion or seek a constructive trust, it is
duplicative of the first and fourth causes of action. Thus,
Supreme Court properly dismissed the second cause of action as
against defendant. On the other hand, in the absence of a CPLR
3211 (a) motion by Jaques, the court was without authority to
search the record and dismiss any claims against him (see Mann v
Rusk, 14 AD3d 909, 910 [2005]; compare CPLR 3212 [b] [permitting
court to search the record on a summary judgment motion and grant
relief to a nonmoving party]).

      Plaintiff properly stated a cause of action against
defendant for moneys had and received. The elements of such a
cause of action are that the defendant received money belonging
to the plaintiff and benefitted from that money, and that equity
and good conscience will not permit the defendant to keep the
money (see Matter of Moak, 92 AD3d 1040, 1044 [2012], lv denied
19 NY3d 812 [2012]; Matter of Witbeck, 245 AD2d 848, 850 [1997]).
The complaint alleges that money stolen from plaintiff by Jaques
was used to improve and maintain defendants' home, and that
defendant consented to these actions. Accepting the allegations
as true, and reasonably inferring that the use of this money
provided a benefit to defendant, the third cause of action was
sufficient.

      Supreme Court erred in dismissing the fourth cause of
action against both defendants. The parties refer to this cause
of action as seeking a constructive trust. The complaint does
not sufficiently allege that plaintiff is entitled to a
constructive trust against defendant, as there are no allegations
that she was in a confidential or fiduciary relationship with
plaintiff, that she made a promise or that a transfer was made in
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reliance on any such promise – in fact, the allegations are that
the money was transferred without plaintiff's knowledge, rather
than in reliance on a promise (compare Rafferty Sand & Gravel,
LLC v Kalvaitis, 116 AD3d 1290, 1291 [2014]). The fourth cause
of action, viewed liberally and incorporating the previous
allegations, does contain allegations that fit within the
cognizable legal theory of breach of fiduciary duty by Jaques as
aided and abetted by defendant. Jaques was plaintiff's sole
bookkeeper and had authorization to write checks on at least one
business account, putting him in a confidential and fiduciary
relationship of trust with plaintiff (see New York State Workers'
Compensation Bd. v SGRisk, LLC, 116 AD3d 1148, 1152-1153 [2014]).
The complaint alleges that Jaques breached his duty by stealing
plaintiff's money and making unauthorized personal purchases with
it. The complaint also alleges that defendant knowingly
participated and acquiesced in Jaques' activities, and that she
intended to deprive plaintiff of its money. The allegations were
sufficient to plead aiding and abetting breach of a fiduciary
duty, as they alleged Jaques' breach, knowing participation by
defendant through the provision of substantial assistance to
Jaques, and damage to plaintiff (see Roni LLC v Arfa, 15 NY3d
826, 827 [2010]; Kaufman v Cohen, 307 AD2d 113, 126 [2003]).
Although plaintiff may not be able to obtain a constructive trust
against defendant, the fourth cause of action can survive against
her to recover money damages as a claim for aiding and abetting
breach of fiduciary duty. As noted above, the court did not have
the authority to dismiss any causes of action against Jaques on
defendant's CPLR 3211 (a) motion, as Jaques did not move for any
relief (see Mann v Rusk, 14 AD3d at 910).

      Plaintiff was not entitled to an accounting against
defendant. "[T]he existence of a fiduciary relationship between
the parties is a prerequisite to the equitable relief of . . . an
accounting" (Hydro Invs. v Trafalgar Power, 6 AD3d 882, 886
[2004]; see Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d 1284,
1286 [2009]; Berke v Hamby, 279 AD2d 491, 492 [2001]). Plaintiff
has not alleged any such relationship between it and defendant.
Although Jaques had a fiduciary relationship with plaintiff, that
relationship is not imputed to defendant. Hence, the fifth cause
of action should be dismissed against defendant.
                              -5-                517914

      Supreme Court erred in concluding that the doctrine of
equitable estoppel tolled the statutes of limitations as raised
by defendant. Although the doctrine precludes a defendant from
relying on a "statute of limitations defense when the plaintiff
was prevented from commencing a timely action by reasonable
reliance on the defendant's fraud, misrepresentation or other
affirmative misconduct . . ., equitable estoppel does not apply
where the misrepresentation or act of concealment underlying the
estoppel claim is the same act which forms the basis of [the]
plaintiff's underlying substantive cause[s] of action" (Kosowsky
v Willard Mtn., Inc., 90 AD3d 1127, 1130-1131 [2011] [internal
quotation marks and citations omitted]). To support its estoppel
argument here, plaintiff is relying on the same underlying
conduct that forms the basis of the substantive causes of action
– namely, defendant's acceptance of delivery at defendants' home
of goods charged to plaintiff, which arguably would have
concealed Jaques' theft from plaintiff. Thus, equitable estoppel
should not be applied to prevent defendant from asserting a
statute of limitations defense.

      Aside from the estoppel argument, plaintiff does not raise
any argument that would prevent application of the statutes of
limitations. For conversion, a three-year statute of limitations
applies and runs from the date that the conversion took place,
not from discovery of the theft (see CPLR 214 [3]; Vigilant Ins.
Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36,
44 [1995]; Berman v Goldsmith, 141 AD2d 487, 487 [1988]). The
statute of limitations runs separately from each separate act of
conversion; a series of conversions against the same person or
entity is not considered a single transaction for such purpose
(see Stanley v Morgan Guar. Trust Co. of N.Y., 173 AD2d 390, 391
[1991]). A six-year statute of limitations applies to a cause of
action for moneys had and received (see Bias Limud Torah v County
of Sullivan, 290 AD2d 856, 857 [2002], lv denied 98 NY2d 610
[2002]). The statute of limitations for breach of fiduciary duty
differs depending on whether the substantive remedy sought is
purely monetary – giving rise to the three-year period applicable
to injuries to property (see CPLR 214 [4]) – or is equitable in
nature – giving rise to a six-year period pursuant to CPLR 213
(1) (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d
132, 139 [2009]). We have already determined that the equitable
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remedy of constructive trust is not available against defendant,
and that plaintiff is limited to collecting money damages for the
breach of fiduciary duty cause of action, making the three-year
limitations period applicable here. As this action was commenced
on December 21, 2012, the applicable statute of limitations bars
recovery for any conversions or breaches of fiduciary duty
alleged to have occurred more than three years prior to that
date, and for moneys had and received more than six years prior
to that date.

      Finally, the notice of pendency should not have been
cancelled. When Supreme Court dismissed the second and fourth
causes of action against both defendants, it reasonably cancelled
the notice of pendency because no remaining cause of action could
result in a judgment that "would affect the title to, or the
possession, use or enjoyment of, real property" (CPLR 6501). Now
that we have reinstated those two causes of action against Jaques
and the fourth cause of action against defendant, and the notice
of pendency is applicable and proper as to those causes of
action, we reinstate the notice of pendency.

     Egan Jr., Devine and Clark, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as (1) granted defendant
Elizabeth W. Jaques' motion by dismissing the fourth cause of
action against her, (2) denied said defendant's motion as to the
fifth cause of action against her, (3) determined that said
defendant was estopped from raising the statute of limitations
defense, (4) sua sponte dismissed the second and fourth causes of
action against defendant Lawrence R. Jaques, and (5) cancelled
the notice of pendency; (1) motion denied as to the fourth cause
of action, (2) motion granted as to the fifth cause of action
against defendant Elizabeth W. Jaques, (3) bar as untimely any
recovery against said defendant (a) on the first or fourth causes
of action for conversion or breaches of fiduciary duty occurring
more than three years prior to commencement of this action and
(b) on the third cause of action for moneys had or received more
than six years prior to commencement of this action, (4) second
                              -7-                  517914

and fourth causes of action reinstated against defendant Lawrence
R. Jaques, and (5) notice of pendency reinstated; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
