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NY's 2nd Dept Says Children's Replevin Action Against Father Time Barred

September 9, 2009

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In the recent case of <i>McGough v. Leslie</i>, the Second Department ruled that the children of artist Alfred Leslie may not have their artwork back. The children commenced an action in both conversion and replevin against their father, whom they claimed previously gifted some of his artworks to them. Defendant Leslie countered that the claim was time barred, and the lower court disagreed. The appellate court, reversing the lower court held the claim was in fact time barred under the law of simple conversion.

The Second Department held that this was not a case of replevin, but one of simple conversion. Relying on the Court of Appeals decision in <i>State of New York v. Seventh Regiment Fund</i>, the Second Department held that the statute of limitations for bringing an action sounding in conversion had already expired. The court stated: “The Seventh Regiment Fund Court reversed this Court, remitted the case to Supreme Court, and held that: ‘Supreme Court must determine upon remittal whether the Fund was a bona fide purchaser. If so, the State's claim will have accrued only after demand and refusal. If not, or if demand would have been futile, the claim will have accrued when the Fund actually interfered with the State's property" (98 NY2d at 261).’”

Analogizing this claim to that of the plaintiffs in Seventh Regiment Fund, the court found that there had been interference by defendant to his children’s property since 1991. Despite pleadings by his children and ex-wife to turn over the artwork, defendant never did. The court stated that the claims are time-barred by more than a decade and dismissed plaintiffs’ complaint in its entirety.

Thanks to Alison Weintraub for her contribution to this post.

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