Opinion
16456 Index No. 159534/21 Case No. 2022–02140
10-18-2022
J. William MIDDENDORF II, Plaintiff–Appellant, v. The AMERICAN NUMISMATIC SOCIETY, Defendant–Respondent.
Olsoff | Cahill | Cossu LLP, New York (John R. Cahill of counsel), for appellant. DLA Piper LLP (US), New York (Scott R. Wilson of counsel), for respondent.
Olsoff | Cahill | Cossu LLP, New York (John R. Cahill of counsel), for appellant.
DLA Piper LLP (US), New York (Scott R. Wilson of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Oing, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered April 21, 2022, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss the claim for replevin, unanimously affirmed, without costs.
The court correctly determined that plaintiff's claim was time-barred. The statute of limitations for replevin claims is three years, and a claim "against a good faith purchaser accrues once the true owner makes a demand and is refused" ( Swain v. Brown, 135 A.D.3d 629, 631, 24 N.Y.S.3d 598 [1st Dept. 2016] ; see CPLR 214[3] ). A refusal of a demand "need not use the specific word ‘refuse’ so long as it clearly conveys an intent to interfere with the demander's possession or use of his property" ( Swain, 135 A.D.3d at 631, 24 N.Y.S.3d 598, quoting Feld v. Feld, 279 A.D.2d 393, 395, 720 N.Y.S.2d 35 [1st Dept. 2001], lv denied 96 N.Y.2d 717, 730 N.Y.S.2d 791, 756 N.E.2d 79 [2001] ). Defendant demonstrated that, after plaintiff made a demand for return of the printing plate in 2014, it communicated its refusal in letters sent in 2016 and 2017, more than three years before plaintiff commenced this action. Although defendant's letters did not entirely foreclose the possibility that plaintiff could present evidence of his rightful ownership in the future, the clear import of the letters was that defendant "emphatically disagreed with plaintiff's position" that he was the rightful owner (see Grosz v. Museum of Modern Art, 772 F. Supp. 2d 473, 484–486 [S.D. N.Y.2010], affd 403 Fed. Appx. 575 [2d Cir.2010], cert denied 565 U.S. 819, 132 S.Ct. 102, 181 L.Ed.2d 30 [2011] ). Among other things, defendant noted that plaintiff had never filed a police report or insurance claim in the 50 years since the alleged theft of the plate from his car. Defendant also noted that it had acquired its plate as a counterfeit in 1965, as made clear in its detailed online description of the object, and had always made it available for study and publication. Plaintiff's subsequent communications with defendant based on new information did not restart the clock for accrual, because "[a]n aggrieved owner of property cannot delay the accrual of his cause of action for conversion indefinitely by eliciting multiple rejections from the person who is interfering with his right to possession" ( Swain, 135 A.D.3d at 632, 24 N.Y.S.3d 598, quoting Grosz, 772 F. Supp. 2d at 494 ).
In view of the foregoing, we need not reach the issue of whether the claim was barred by laches.