Matter of Loew

[*1] Matter of Loew 2012 NY Slip Op 52377(U) Decided on December 21, 2012 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2012
Sur Ct, Nassau County

In the Matter of Proceeding for Turnover of Property Withheld in the Estate of Jacqueline Gebhard Loew, a/k/a JACQUELINE LOEW, JACQUELINE G. LOEW and JACQUELINE A. LOEW, Deceased.



355665/D



Michael J. Sullivan, Esq. (attorney for petitioner)

Novick & Assoc., P.C.

202 East Main Street, Suite 208

Huntington, NY 11743

Tip Henderson, Esq. (attorney for respondent)

41 Forest Ave., 2nd Floor

Glen Cove, NY 11542

Henry Charles Desci, Jr., Esq. (attorney for respondent)

17 Meadow Lane

E. Williston, NY 11596

Edward W. McCarty, J.

In this discovery proceeding, the petitioner, Cynthia Frank, moves for partial summary judgment for the turnover of Two Hundred Thousand Dollars ($200,000.00) transferred by the decedent, Jacqueline Loew, to the respondent, Gregory Tull, on or about February 1, 2008, together with interest at the statutory rate of nine (9%) percent from November 25, 2011. The respondent, Gregory Tull, has cross-moved: (i) to amend his answer to assert the defense of statute of limitations with respect to the $200,000.00 transfer and (ii) for summary judgment dismissing the petition in its entirety on the basis of statute of limitations.

The decedent, Jacqueline Loew, died on March 4, 2009, a domiciliary of Nassau County. She was survived by her three children, Cynthia Frank, William Tull, Jr., and Gregory Tull (hereinafter "Cynthia," "William," "Gregory"). The decedent left a last will and testament dated December 22, 2006. Pursuant to the terms of her will, the decedent's residuary estate is divided equally among her three children. The will nominated Gregory as executor. Preliminary letters testamentary issued to Gregory on August 26, 2009. The will was admitted to probate by decree dated December 21, 2010, and letters testamentary issued to Gregory on the same date.

Thereafter, Cynthia petitioned for the issuance of limited letters of administration to [*2]commence a SCPA 2103 discovery proceeding against Gregory. Cynthia filed her petition for limited letters of administration on September 22, 2010. Gregory opposed Cynthia's application and filed objections claiming that Cynthia's allegations were conclusory. By decision dated January 26, 2011 (Dec. No. 27004), the court granted Cynthia's application for limited letters of administration, and limited letters issued to Cynthia on February 23, 2011. Pursuant to an Order to Attend signed on June 17, 2011, Gregory was examined on July 19, 2011. Thereafter, on November 25, 2011, Cynthia filed a Petition for the Turnover of Property, and a citation returnable on January 4, 2012 issued thereon.

Cynthia's petition seeks the turnover of the following: (i) Two Hundred Thousand ($200,000.00) Dollars transferred by the decedent to Gregory and his wife, Diana, by check number 6531 in or about January 2008 from decedent's Citibank checking account; (ii) Thirty-Six Thousand ($36,000.00) Dollars transferred to a neighbor, Anthony Congero, Gregory's father-in-law, Frank Arculeo, and mother-in-law, Francine Arculeo, by checks numbered 6407, 6408 and 6409, each in the amount of $12,000.00 on or about July 28, 2007, and thereafter transferred by such individuals to Gregory and Diana Tull; and (iii) "The Slow Day" painting by John George Brown, which was sold by Gregory on or about September 27, 2004 through Christie's for $22,000.00.

Gregory served and filed an Answer asserting that all of the transfers were, in fact, gifts made by the decedent to him. In addition, as to the $36,000.00 transfer and the transfer of "The Slow Day" painting, Gregory raised the affirmative defense of statute of limitations in his answer.

Cynthia has now moved for partial summary judgment with respect to the transfer by the decedent of $200,000.00 to Gregory by check number 6531, in fact, dated February 1, 2008. Cynthia argues that summary judgment should be granted because Gregory will not be able to establish by clear and convincing evidence that the transfer was a gift and not a loan. Cynthia relies primarily on Gregory's testimony at his deposition that he and the decedent were the only persons present on or about February 1, 2008 when the purported gift was allegedly made and the check was delivered to him. Cynthia also asserts that Gregory testified that he, not the decedent, advised the decedent's accountant, Alan Kotokowski, that the decedent had made a $200,000.00 gift to him. Mr. Kotokowski has submitted an affidavit, annexed to Cynthia's moving papers, in which he confirms that he never had a conversation with the decedent regarding the $200,000.00 transfer and Gregory was his only source of information that the transfer was a gift. Mr. Kotokowski prepared a gift tax return for the decedent for 2008 based upon the information provided by Gregory. In addition to her own affidavit, Cynthia's motion is supported by the affidavits of her husband, Bob Frank (hereinafter "Bob"), and her brother, William. According to Bob, the decedent expressed concern that Gregory was constantly seeking financial assistance from her. Additionally, William avers that his mother never mentioned to him that she had made a $200,000.00 gift to Gregory.

Thus, Cynthia argues that summary judgment should be granted because Gregory has not offered any evidence, other than his own testimony, which she claims is barred by CPLR 4519, in support of his claim that the transfer was a gift.

Gregory has cross-moved to amend his answer to include the affirmative defense of statute of limitations with respect to the $200,000.00 transfer and for summary judgment [*3]dismissing the petition entirely on the grounds of statute of limitations. Gregory argues that Cynthia's assertion that his testimony is barred by CPLR 4519 to defend a summary judgment motion is incorrect. In addition, Gregory states that Cynthia's analysis is flawed because it mistakenly assumes that there must be a witness to the transaction in order to prove the transfer is a gift. Gregory asserts that there are a number of ways by which a gift may be proved. Gregory also alleges that discovery is not yet complete, and, therefore, Cynthia's motion is premature. He argues that the depositions of Cynthia, her husband, Bob, and his brother, William, will produce evidence supportive of his claim that the transfer was a gift. Gregory further asserts that his claim that the $200,000.00 is a gift is consistent with prior gifts his mother made to him and her other children, including Cynthia. None of these prior transfers were ever identified as gifts in notations on the checks or in a separate document. Gregory asserts that it is significant that his mother made a $280,000.00 loan to him three days after the $200,000.00 transfer and in a separate document evidenced the transaction as a loan. According to Gregory, the loan was made to help him purchase a retirement home in South Carolina, prior to his New York home being sold. When his New York home was sold, he repaid the decedent $280,000.00 with interest. Gregory claims that if the decedent wanted to treat the $200,000.00 transfer as a loan and not a gift, she certainly was aware of how to memorialize a loan, especially given the proximity in time between the two transfers.

Additionally, Gregory claims that in 2006 he convinced the decedent to change her will so that his siblings would receive more of her estate. In 2004, the decedent had executed a will under which Gregory would inherit the decedent's home, all her personal property and one-third of her residuary estate. According to Gregory, the decedent's house was worth approximately $1,000,000.00. He suggested that she divide her estate equally among her children, but that she gift him money from time to time for his retirement and the purchase of a retirement home. Gregory states that, in accordance with their conversation, the decedent executed a new will and gifted him $135,000.00 in 2007, $36,000.00 to others in 2007 which was then regifted to him and $200,000.00 in 2008. Gregory points out that the decedent executed the gift tax return for her 2007 gifts and asserts that she would have executed the gift tax return reflecting the 2008 gifts; however, she was in a coma and died on March 4, 2009.

In any event, Gregory claims that the statute of limitations is a bar to recovery of the $200,000.00 and $36,000.00 transfers because the statute of limitations expired one year from the date of the decedent's death. He argues that Cynthia has admitted that she did not demand the turnover until November 25, 2011, beyond the date the statute ran. In addition, Gregory argues that the cause of action to recover The Slow Day painting is time-barred since the statute of limitations expired in October 2007 while the decedent was still alive.

In response to Gregory's cross-motion, Cynthia not only disputes the allegations made by Gregory, but also argues that the statute of limitations was tolled from the time of Gregory's appointment as preliminary executor until she received limited letters of administration. She further claims that Gregory was the decedent's attorney-in-fact and that there was no repudiation so the statute of limitations has not run with respect to The Slow Day painting. Gregory argues that the gift of The Slow Day painting was made by the decedent, individually, and was not received or sold by him as attorney-in-fact.

CROSS MOTION TO AMEND ANSWER[*4]

Gregory filed an answer to the petition on March 7, 2012. On March 23, 2012, Cynthia moved for partial summary judgment and asked for the imposition of interest "at the statutory rate of nine percent from November 25, 2011, when petitioner first made demand for turnover of the funds." That statement apparently prompted Gregory's cross-motion to amend his answer to include the statute of limitations defense to the $200,000.00 transfer. Gregory's answer already interposed the defense of statute of limitations to the transfers of $36,000.00 and The Slow Day painting. Gregory claims that he did not raise the statute of limitations defense with respect to the $200,000.00 transfer because Cynthia only now in her motion has stated her position as to when "her first claim was made for turnover of these funds."

The court has broad discretion whether to grant or deny leave to amend under CPLR§ 3025 (b). "Leave to amend a pleading pursuant to CPLR § 3025 (b) should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, or unless prejudice or surprise to the opposing party results directly from the delay in seeking leave to amend" (Seidman v Industrial Recyling Props., Inc., 83 AD3d 1040 [2d Dept 2011]; see also Matter of Pinto, 2012 NY Misc Lexis 5391, 2012 NY Slip Op 52200 [U] [Sur Ct, Richmond County 2012]). Leave to amend is generally exercised freely (Matter of Bender, 18 Misc 3d 1109A, 2007 NY Slip Op 52478 [U] [Sur Ct, Nassau County 2007]). The court will consider: (1) how long the amending party knew the facts raised in the amendment and whether a reasonable excuse is offered for the delay (Matter of Goggins, 231 AD2d 634 [2d Dept 1996]); (2) whether the amendment plainly lacks merit (Matter of Carvel, NYLJ, Apr. 16, 2002 at 23 [Sur Ct, Westchester County]; Seaman Corp v Binghamton Sav. Bank, 243 AD2d 1027 [3d Dept 1997]; and (3) whether the amendment would cause prejudice to the other party (Matter of Carvel, NYLJ, Apr. 2, 2002, at 23 [Sur Ct, Westchester County]; Seaman Corp v Binghamton Sav. Bank, 243 AD2d 1027 [3d Dept 1997]; Matter of Goggins, 231 AD2d 634 [2d Dept 1996]; Wyso v City of New York, 91 AD2d 661 [2d Dept 1982]; Matter of Sabha, 65 AD2d 917 [4th Dept 1978]). Typically, denial of a motion for leave to amend might occur after a lengthy delay following the filing of the original petition or just before commencement of a trial (Gallo v Aiello, 139 AD2d 490 [2d Dept 1988]).

Here, Gregory claims that he did not include the defense of statute of limitations until Cynthia articulated her position regarding the date of her original demand for return of the funds. The court is unsure whether this, in fact, prompted Gregory's request or whether the defense was unintentionally omitted. Nevertheless, there has been no significant delay since the cross-motion was made only one month after the answer was filed. No prejudice would be caused to Cynthia by allowing this amendment; since there has been no loss to her or expense that she incurred as a result of this defense not being included in the original answer (Wyso v City of New York, 91 AD2d 661 [2d Dept 1982]). As to merit, the court finds a threshold level has been met (C.F.J. Assoc. of NY v Hanson Industries, 260 AD2d 917 [3d Dept 1999]). Accordingly, the court grants the branch of the cross-motion which seeks leave to amend Gregory's answer.

MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT

Summary judgment may be granted only when it is clear that no triable issue of fact exists (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]). The court's function on a motion for summary judgment is "issue finding" rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d [*5]395, 404 [1957]), because issues of fact require a hearing for determination (Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415, 416 [2d Dept 1989]). The court should view the evidence in the light most favorable to the non-moving party and give the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence (Fundamental Portfolio Advisors, Inc., v Tocqueville Asset Mgt. L.P., 7 NY3d 96, 105-106 [2006]).

If the moving party meets his or her burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In doing so, the party opposing the motion must lay bare his or her proof (see Towner v Towner, 225 AD2d 614, 615 [2d Dept 1996]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Prudential Home Mtge. Co., Inc. v Cermele, 226 AD2d 357, 357-358 [2d Dept 1996]).

CYNTHIA'S MOTION FOR SUMMARY JUDGMENT

Cynthia claims that Gregory's testimony is barred by CPLR 4519 and, therefore, is inadmissible to defend against the summary judgment motion. Testimony that would be barred under the Deadman's Statute (CPLR 4519) cannot be considered in support of a motion for summary judgment) (Phillips v Joseph Kantor & Co., 31 NY2d 307, 313 [1972]). "The Court of Appeals has held emphatically, evidence excludable under the Deadman's Statute (CPLR 4519) should not be used to support summary judgment" (Phillips v Joseph Kantor & Co., 31 NY2d 307, 313 [1972]; 9 Warren's Heaton on Surrogates' Court, § 116.03 [3], 7th ed). However, while evidence excludable by CPLR 4519 may not be used to support such a motion, it may be used in opposition to a motion for summary judgment (Matter of Vetri, NYLJ, Feb. 26, 1999 at 32; Matter of Penn, 14 Misc 3d 1203A, 2006 NY Slip Op 52394U [Sur Ct, Nassau County 2006]). Thus, Cynthia's assertion that Gregory's testimony cannot be used to oppose a motion for summary judgment is incorrect.

In order to have a valid inter vivos gift, the petitioner must prove three essential elements: donative intent, delivery sufficient to divest the donor of dominion and control over the property, and acceptance (Gruen v Gruen, 68 NY2d 48 [1986]; Matter of Szakbo, 10 NY2d 94 [1961]). The donee bears the burden of proving the gift by clear and convincing evidence. One who attempts to establish an inter vivos gift has a heavy burden (Matter of MacGregor, 119 AD2d 909[3d Dept 1986]). The proof must be of great probative force and must clearly establish every element of a gift (Matter of Abramowitz, 38 AD2d 387 [2d Dept 1972], affd 32 NY2d 654 [1973]; Matter of Kennedy, 36 AD2d 549 [3d Dept 1971]; Matter of Kaminsky, 17 AD2d 690 [3d Dept 1962]).

The court notes that Gregory filed his answer on March 7, 2012. On March 23, 2012, Cynthia moved for partial summary judgment on the basis of Gregory's examination pursuant to the Order to Attend which took place on July 19, 2011. Gregory argues that the motion for [*6]summary judgment is premature as discovery has not yet been completed. Given the short time period between the filing of the answer and Cynthia's motion for summary judgment, the court agrees. Cynthia seemingly seeks to capitalize on Gregory's examination in the inquisitorial stage of the SCPA 2103 proceeding without affording Gregory the benefit of discovery in the hearing stage of the discovery proceeding. Thus, it appears that Cynthia's motion is premature.

Moreover, the evidence presented by Gregory in response establishes the existence of triable issues of fact. Gregory asserts that the $200,000.00 transfer was: (i) consistent with his mother's pattern of gift-giving as shown by the 2007 Federal gift tax return (Form 709) executed by her reflecting a gift of $135,000.00 to him; (ii) a gift as compared to the manner in which the decedent memorialized the loan of $280,000.00; and (iii) consistent with the discussion he had with the decedent in 2006 concerning the change to her will. Here, Gregory, independent of his own testimony, has raised an issue of fact based upon the documentary evidence of the 2007 gift tax return filed by the decedent and the document signed by both the decedent and Gregory on February 4, 2008 memorializing the $280,000.00 loan.

For the foregoing reasons, Cynthia's motion for partial summary judgment is denied.

THE CROSS-MOTION FOR SUMMARY JUDGMENT

Gregory cross-moves to dismiss the petition in its entirety on the basis of the statute of limitations. Gregory claims that the painting The Slow Day was given to him by the decedent as a gift whereupon he commissioned it to Christie's Auction House for sale at auction. The painting sold for approximately $22,000.00 in or about October 29, 2004, of which Gregory received approximately $18,000.00. Gregory claims that the statute of limitations with respect to The Slow Day painting has expired because the applicable statute of limitations is three years. Gregory further argues that since the decedent was alive until March 4, 2009, Cynthia's challenge to the transfer of The Slow Day painting to him sometime in December 2003, is beyond the three-year limitations period and must be dismissed.

Concerning the $36,000.00 transfer on July 28, 2007, Gregory argues that the statute of limitations would have expired on July 28, 2010, subsequent to the decedent's death. However, he claims that because the alleged conversion took place before the decedent's death and because the statute of limitations did not expire until after the decedent's death, pursuant to CPLR 210 (a), Cynthia had only one year from the date of the decedent's death to make the claim. Thus, according to Gregory, the statute actually expired on March 4, 2010. Similarly, with respect to the statute of limitations to challenge the $200,000.00 transfer on February 1, 2008, Gregory argues that the statute would have expired on February 1, 2011, subsequent to the decedent's death. Gregory asserts that because the alleged conversion took place before the decedent's death and because the statute of limitations did not expire until after the decedent's death, Cynthia only had one year from the date of death, or until March 4, 2010, to assert the claim. Gregory claims that the November 25, 2011 filing of the claim was beyond the limitations period for both transfers.

The statute of limitations in a discovery proceeding is governed by the CPLR (SCPA 102). Generally, the statute of limitations for a discovery proceeding is the three-year period provided under CPLR 214 (3) for replevin and conversion actions (Matter of Kraus, 208 AD2d 728 [2d Dept 1994]; Matter of Laflin, 128 Misc 2d 348 [Sur Ct, Nassau County 1985]; Matter of Reich, 49 AD2d 858 [1st Dept 1975]). [*7]

The accrual date of a conversion cause of action is the date the conversion of the property took place (Matter of Rausman, 50 AD3d 909 [2d Dept 2008]), and not the date of discovery or the exercise of diligence to discover (Matter of Chung Li., 32 Misc 3d 1225A [Sur Ct, Queens County 2011]). "Similarly, where replevin is sought against a person who allegedly converted the property, the statute of limitations also begins to run on the date the property was converted. In general, a conversion occurs when there is an unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights" (Matter of Chung Li, 32 Misc 3d 1225A [Sur Ct, Queens County 2011] [internal citations omitted]).

The statute of limitations for a discovery proceeding in which actual fraud is alleged is the later of six years from the commission of the wrong, or two years from the discovery of the fraud or the date on which it could reasonably have been discovered (CPLR 203 [g]; CPLR 213 (8); Matter of Kraus, 208 AD2d 728 [2d Dept 1994]). The fraud must be pleaded with particularity (CPLR 3016 [b]).

Additionally, a claim for recovery of funds as a loan is subject to a six-year statute of limitations. In Matter of Appleby (NYLJ, Sept. 12, 2011, at 32, col 5 [Sur Ct, New York County]), the record revealed that when the decedent's son became ill she assisted him by paying his expenses. The assistance was substantiated in the form of 117 canceled checks, as well as a promissory demand note with the amount payable left blank. The son claimed that the transfers were gifts and not a loan. The court granted partial summary judgment on the issue of the statute of limitations holding that the claim for recovery of funds based upon checks pre-dating the date six years prior to the commencement of the proceeding was time-barred. The court further held that each transfer by check was a separate loan and that the cause of action thereon accrued as of the date of the check.

The statute of limitations is dependent upon when the cause of action begins to run. In Matter of Madris (NYLJ, Mar. 13, 2000, at 25 [Sur Ct, New York County]), the court held that accrual of the cause of action depends on whether a demand and refusal are necessary to establish conversion. When a person in possession acquires the property lawfully, in order for the possession to become unlawful, a demand by the rightful owner is required and the person in possession must refuse to return the property (Matter of King, 305 AD2d 683 [2d Dept 2003]). No demand, however, is necessary if the person in possession commits an overt and positive act of conversion or wrongfully exercises ownership and dominion over the property such as by selling it (Matter of King, 305 AD2d 683 [2d Dept 2003]). In Matter of Marceca (NYLJ, Jan. 25, 2011, at 26, col 6 [Sur Ct, New York County]), the decedent's friend was in possession of the decedent's Ferrari, which had been given to him by the decedent's wife. Since the decedent's wife had no authority to give it to the decedent's friend, the cause of action began to run on the date the friend received the car, since his possession of it was not lawful.

If the respondent in a discovery proceeding is the executor and the petitioner is a limited administrator, the statute of limitations is tolled for the period of time within which the executor, in his fiduciary capacity, should have commenced such a claim against himself individually on behalf of the estate (Matter of Rella, 20 Misc 3d 1143A [Sur Ct, Bronx County 2008]). In Matter of Rella, the court determined that the statute of limitations was tolled for the eleven-month period after the respondent was appointed as preliminary executor and before the [*8]petitioner was granted limited letters as temporary administrator for the sole purpose of bringing a SCPA 2103 proceeding against the preliminary executor. As a result of the tolled period, the SCPA 2103 proceeding was not time-barred even though more than three years had passed from the time of the alleged invalid gift to the commencement of the cause of action (see also Matter of Vergo, 137 Misc 2d 619 [Sur Ct, Monroe County 1987]). Moreover, the commencement of a SCPA 2103 discovery proceeding by an order to attend tolls the statute (Matter of Jacobs, NYLJ, May 12, 2009, at 46, col 4 [Sur Ct, Westchester County]).

THE SLOW DAY PAINTING

The Slow Day painting was sold by Gregory on October 29, 2004 for $22,000.00, as evidenced by a copy of the Christie's receipt annexed to the cross-motion. Regardless of whether Gregory's original possession was lawful or unlawful, the sale on or about October 29, 2004 constituted an overt act of conversion from which date, at the very latest, the statute began to run. Thus, the three-year statute of limitations for conversion expired at the latest on October 29, 2007, while the decedent was still alive. Cynthia's argument that the statute did not run because Gregory was appointed as the decedent' attorney-in-fact under a Durable Power of Attorney executed on July 10, 1998 is unavailing. There is no evidence that Gregory sold the painting as attorney-in-fact. The receipt lists Gregory N. Tull's status as the "owner."

Accordingly, the cross-motion with respect to dismissal of the branch of the petition seeking the turnover of The Slow Day painting is granted on the basis of the statute of limitations.

THE 2007 CHECKS FOR $36,000.00

The checks for $12,000.00 each to Gregory's father-in-law, mother-in-law and neighbor of his in-laws were dated July 28, 2007. Thereafter, the recipients transferred the funds "gifted" to them by the decedent to Gregory and his wife. As these gifts were annual exclusion gifts, they do not appear on the 2007 United States Gift Tax Return (Form 709) filed by the decedent. Presumably, Cynthia's argument, although not specifically articulated by her, is that the $36,000.00 transfer, like the transfer of $200,000.00, was a loan and not a gift.

Gregory argues that Cynthia's claim for recovery is barred by the statute of limitations which is three years. He argues that because the statute had not run prior to the decedent's death, Cynthia only had until March 4, 2010, one year from death, to bring the action pursuant to CPLR 210 (a). Contrary to Gregory's assertion, however, CPLR 210 (a) is not designed to reduce the limitations period, but rather is designed to extend periods of limitation that would otherwise expire shortly after a plaintiff's death (Gordon v Gordon, 110 AD2d 623 [2d Dept 1985]). "It does not operate to reduce statutory periods that would otherwise have more than one year to run (1 Weinstein-Korn Miller, NY Civ Prac ¶ 210.02; Gordon v Gordon, 110 AD2d 623, 624 [2d Dept 1985]).

Viewing the evidence in the light most favorable to Cynthia on the cross-motion, if the transfers are alleged to be loans of additional funds to Gregory, or were the product of a fraudulent scheme involving transfers to non-family members, the statute would be six years from the cause of action which would be July 28, 2013.

Moreover, even if a three-year statute were applicable, the statute of limitations would have expired on July 28, 2010. Under these circumstances, however, there would be a tolling of the statute from the time of August 26, 2009, the date Gregory received preliminary letters, [*9]through February 26, 2011, the date Cynthia received limited letters of administration. Additionally, the Order to Attend was signed on June 17, 2011 further tolling the statute. The court is not persuaded by Gregory's argument that Cynthia should not receive the benefit of tolling since she unnecessarily requested SCPA 1404 examinations in the probate proceeding, since Gregory similarly delayed the issuance of limited letters of administration by filing objections, which the court previously determined consisted entirely of conclusory statements, to Cynthia's application. Accordingly, based upon the tolling provisions, the application is also timely under a three-year limitations period.

In addition, Gregory claims that Cynthia's motion for partial summary judgment should not be granted because discovery has not yet been completed. Cynthia should be afforded the same opportunity for discovery with respect to inquiry regarding the $36,000.00 transfers.

THE $200,000.00 TRANSFER

The transfer of $200,000.00 was made on February 1, 2008. Thus, even if a three-year statute of limitations applies, as stated above, the statute of limitations was tolled from the time Gregory received preliminary letters through the date Cynthia received her limited letters of administration and by virtue of the Order to Attend. Moreover, the statute of limitations applicable to an action to recover a loan is six years. Accordingly, the cause of action for recovery of the $200,000.00 as a loan is also not time-barred. Therefore, the application is timely under either the three-year or six-year limitations period.

CONCLUSION

Cynthia's motion for partial summary judgment is denied.

Gregory's cross-motion for leave to amend his answer to include the defense of statute of limitations with respect to the $200,000.00 transfer is granted. The branch of the cross-motion which seeks dismissal of the petitioner's application seeking the turnover of The Slow Day painting is granted on the basis that it is time-barred. The remaining branches of the

cross-motion are denied.

Settle order.

Dated: December 21, 2012

EDWARD W. McCARTY III

Judge of the

Surrogate's Court