Children seek to recover property from relatives

New York Appellate Division Reports

PONNAMBALAM v. PONNAMBALAM, 2005-06064 [2d Dept 12-12-2006] 2006 NY Slip Op 09440 Yogaluchshmy Ponnambalam, etc., et al., plaintiffs, v. Gajendrakumar Gangaser Ponnambalam, et al., appellants-respondents, Vijayaluchshmi Sivaprakasapillai, et al., respondents-appellants, et al., defendant. 2005-06064, 2005-11342. Appellate Division of the Supreme Court of New York, Second Department. Decided on December 12, 2006.

In an action, inter alia, for a judgment declaring the
rights of the parties to certain real property, (1) the
plaintiffs Gajendrakumar Gangaser Ponnambalam and Mrinalini
Ponnambalam appeal from so much of an order of the Supreme
Court, Westchester County (Murphy, J.), entered May 27,
2005, as granted that branch of the motion of the
defendants Vijayaluchshmi Sivaprakasapillai, Dharshana
Sivaprakasapillai, and Brahman Sivaprakasapillai which was
to dismiss the second cause of action insofar as asserted
against them pursuant to CPLR 3211(a)(3), and the
defendants Vijayaluchshmi Sivaprakasapillai, Dharshana
Sivaprakasapillai, and Brahman Sivaprakasapillai
cross-appeal from so much of the same order as, in effect,
denied that branch of their motion which was to dismiss the
first cause of action insofar as asserted by the plaintiffs
Gajendrakumar Gangaser Ponnambalam and Mrinalini
Ponnambalam against them pursuant to CPLR 3211(a)(5), and
upon, in effect, granting that branch of their motion which
was to dismiss the first cause of action insofar as
asserted against them on other grounds, granted leave to
the plaintiffs Gajendrakumar Gangaser Ponnambalam and
Mrinalini Ponnambalam to serve and file an amended summons
and complaint against the defendants Vijayaluchshmi
Sivaprakasapillai and Dharshana Sivaprakasapillai, and (2)
the plaintiffs Gajendrakumar Gangaser Ponnambalam and
Mrinalini Ponnambalam appeal, as limited by their brief,
from stated portions of an order of the same court entered
November 15, 2005, which, inter alia, granted those
branches of the motion of the defendants Vijayaluchshmi
Sivaprakasapillai, Dharshana Sivaprakasapillai, and Brahman
Sivaprakasapillai which were to dismiss so much of the
amended complaint insofar as asserted against the
defendants Vijayaluchshmi Sivaprakasapillai and Dharshana
Sivaprakasapillai by the plaintiffs Gajendrakumar Gangaser
Ponnambalam and Mrinalini Ponnambalam as sought to impose a
constructive trust, punitive damages, and to award those
plaintiffs more than a 50% interest in certain real
property.

Martin J. King, P.C., Mount Kisco, N.Y., for
appellants-respondents.

McCarthy Fingar, LLP, White Plains, N.Y. (Clifford G.
Kleinbaum, Philip C. Landrigan, and Ambrose Wotorson of
counsel), for respondents-appellants.

FRED T. SANTUCCI, J.P. GLORIA GOLDSTEIN PETER B. SKELOS
ROBERT A. LIFSON, JJ.

DECISION & ORDER

ORDERED that the order entered May 27, 2005, is affirmed
insofar as appealed and cross-appealed from, without costs
or disbursements; and it is further,

ORDERED that the order entered November 15, 2005, is
modified, on the law, by deleting the provision thereof
granting those branches of the motion of the defendants
Vijayaluchshmi Sivaprakasapillai, Dharshana
Sivaprakasapillai, and Brahman Sivaprakasapillai which were
to dismiss so much of the amended complaint insofar as
asserted against the defendants Vijayaluchshmi
Sivaprakasapillai and Dharshana Sivaprakasapillai by the
plaintiffs Gajendrakumar Gangaser Ponnambalam and Mrinalini
Ponnambalam as sought to impose a constructive trust and to
award those plaintiffs more than a 50% interest in certain
real property, and substituting therefor a provision
denying those branches of the motion; as so modified, the
order entered November 15, 2005, is affirmed insofar as
appealed from, without costs or disbursements.

The plaintiffs Gajendrakumar Gangaser Ponnambalam and his
sister Mrinalini Ponnambalam (hereinafter the Ponnambalams)
commenced this action in August 2004, inter alia, for a
judgment declaring the rights of the parties to certain
real property. They sought to recover certain real and
personal property which they allegedly inherited from their
father, Gassinather Gangaser Ponnambalam (hereinafter the
decedent). The decedent was a resident and domiciliary of
Sri Lanka, where his Last Will and Testament was admitted
to probate. His children, the Ponnambalams, currently
reside in that country. The Ponnambalams seek, inter alia,
to recover the subject property from their relatives who
reside in New York, namely, the defendants Vijayaluchshmi
Sivaprakasapillai, Dharshana Sivaprakasapillai, and Brahman
Sivaprakasapillai (hereinafter the family defendants). The
property at issue consists of money in certain United
States bank accounts and real property located at 16 Wagon
Wheel Road in Mamaroneck (hereinafter the Wagon Wheel
Property).

The first cause of action in the complaint alleged that the
Wagon Wheel Property was owned by Dharshana and the
decedent as tenants in common. The Ponnambalams allege,
however, that Dharshana and Vijayaluchshmi wrongfully
conveyed the decedent’s interest in such real property to
Dharshana as sole owner. The wrongful transfer allegedly
occurred after the decedent passed away. The second cause of
action in the complaint alleged that Vijayaluchsmi and
Brahman misappropriated funds in certain bank accounts
which allegedly belonged to the decedent.

In the order entered May 27, 2005, the Supreme Court
properly granted that branch of the family defendants’
motion which was to dismiss the second cause of action in
the complaint pursuant to CPLR 3211(a)(3). Under the law of
this State, the Ponnambalams lack the capacity as devisees
under the decedent’s will to sue for the recovery of funds
taken from the bank accounts. The executor of the decedent’s
estate, not his heirs, had the duty to recover personal
property of the estate (see McQuaide v Perot, 223 NY 75,
79; Gaentner v Benkovich, 18 AD3d 424, 426; Jackson v
Kessner, 206 AD2d 123, 126), and probate proceedings were
necessary in order to authenticate the title of the executor
to administer upon the personal property (citing Corley v
McElmeel, 149 NY 228, 235; see Graham v State, 51 NYS2d
437, 441-442). Contrary to the Ponnambalams’ contention,
the Supreme Court did not err in failing to apply Sri
Lankan law to this issue. The Ponnambalams did not plead
the substance of the foreign law to be applied (see CPLR
3016[e]), nor did their opposition papers provide the court
with sufficient information to enable it to take judicial
notice of the Sri Lankan law at issue (see CPLR 4511[b]).
To the extent that the Ponnambalams seek to rectify these
failures for the first time on appeal, their contentions are
not properly before this court.

In the order entered May 27, 2005, the Supreme Court
properly denied that branch of the family defendants’
motion which was to dismiss the first cause of action
pursuant to CPLR 3211(a)(5). Contrary to the family
defendants’ contention, the first cause of action is not
barred by the statute of limitations. To the extent that it
seeks to impose a constructive trust on the Wagon Wheel
Property, this cause of action 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
giving rise to a duty of restitution” (Mazzone v Mazzone,
269 AD2d 574, 574-575; quoting Mattera v Mattera, 125 AD2d
555, 556-557; see Panish v Panish, 24 AD3d 642; Pisciotto v
Dries, 306 AD2d 262). The gravamen of the Ponnambalams’
first cause of action was not that Dharshana wrongfully
acquired the property as a tenant in common with the
decedent, but rather that she and Vijayaluchshmi wrongfully
transferred the property to Dharshana as sole owner after
the decedent passed away. Under these circumstances, the
cause of action is not time barred.

In the order entered November 15, 2005, the Supreme Court
erred in dismissing so much of the amended complaint as
sought to award the Ponnambalams more than a 50% interest
in the Wagon Wheel Property and sought to impose a
constructive trust on such interest. Viewing the
allegations in the light most favorable to the Ponnambalams,
as the court must on a motion to dismiss pursuant to CPLR
3211(a)(7) (see Peters v Accurate Bldg. Inspectors Div. of
Ubell Enters., 29 AD3d 972, 973; Cruz v McAneney, 31 AD3d
54, 55), they alleged sufficient facts to warrant such
relief (see Laney v Siewert, 26 AD3d 194; Lang v Lang, 270
AD2d 463, 464; Edelstein v Lieb, 205 AD2d 491, 493; Johnson
v Depew, 33 AD2d 645; Moran v Thomas, 280 App Div 1037;
Perrin v Harrington, 146 App Div 292, 296; see generally
Simonds v Simonds, 45 NY2d 233; Sharp v Kosmalski, 40 NY2d
119). Contrary to the Ponnambalams’ contention, however,
the Supreme Court properly struck their demand for punitive
damages as such an award is not warranted under the
circumstances alleged herein (see Cadle Co. v Organes
Enters., 29 AD3d 927, 929; Abalon Precision Mfg. Corp. v
Flair Intl. Corp., 19 AD3d 338, 339; Crispino v Greenpoint
Mtge. Corp., 2 AD3d 478, 479; Beir v Manufacturers Hanover
Trust Co., 110 AD2d 529).

The family defendants’ remaining contentions are academic,
unpreserved for appellate review, or without merit.

SANTUCCI, J.P., GOLDSTEIN, SKELOS and LIFSON, JJ.,
concur.[*4]