Surrogate Anthony Scarpino
Decedent’s daughter, Lax, moved for summary judgment dismissing this turnover proceeding. Decedent’s other children, Courant and Moser, were appointed co-executors of the estate. The subject proceeding revolved around ownership of two instruments, a violin and viola. Lax claimed she owned the instruments, while Moser alleged decedent, thus the estate, owned them, noting Lax refused to return the instruments to the estate. Moser commenced this action seeking to compel Lax to turn over the instruments, setting forth claims for conversion and constructive trust. The court ruled, contrary to Lax’s contention, the petition sufficiently alleged causes of action for both claims. Lax argued the petition was time-barred. The court concluded the cause of action seeking to impose a constructive trust on the viola was time-barred, as such claim was governed by a six year statute of limitations, which began to run, as with the conversion claim, when Moser and Courant were appointed co-executors of decedent’s estate in 1991. However, it found triable issues of fact existed of whether a 1989 letter was sufficient to commence the statute of limitations running regarding Lax’s claim that she owned the violin.
