Defendants Jose Delacruz and Madelyn Delacruz move pursuant to CPLR § 3212 seeking an order dismissing plaintiff's complaint as time barred pursuant to CPLR § 213(1). Plaintiff cross moves to amend her complaint pursuant to CPLR § 3025(b) to the extent of requesting monetary and punitive damages in addition to the equitable relief demanded. Defendants also cross move seeking to strike plaintiff's note of issue and jury demand claiming plaintiff is not entitled to a jury to determine her equitable claims. Each party has opposed each others motions. The parties appeared in Part 6 of this Court for oral argument on the motions on April 14, 2009, and decision was reserved.

FACTS AND PROCEDURAL BACKGROUND

Defendants urge dismissal of plaintiff's complaint seeking imposition of a constructive trust and an accounting as time barred. Since the motion is made pursuant to CPLR § 3212 and [*2]not CPLR § 3211(a)(5), the court must view the evidence in a light most favorable to the non-moving party. See Fleming v. Garment Ser., 34 AD3d 525, 824 N.Y.S.376 (2nd Dept. 2006).

According to plaintiff, after a series of intra-family transactions defendants acquired the entire fee interest in the property known and located at 1130 60th Street, Brooklyn, New York. Among the interests they obtained was that of plaintiff Ann Tampa and her immediate family members which amounted to one third of the entire fee interest. Plaintiff alleges that defendants received these interests without consideration and with the understanding that once defendants obtained a mortgage with the proceeds to be used to purchase the remaining two thirds interest from extended family members, one half of the property would be deeded back to plaintiff. The closing on the mortgage occurred December 5, 1994, approximately two weeks after plaintiff, her mother, and two brothers assigned their interests in the premises to defendants. In January or February 1995, defendant Madelyn Delacruz told plaintiff in a face to face meeting that the deed transfer from defendants to plaintiff for a one half interest in the premises had occurred. Plaintiff subsequently moved into the second floor apartment of the premises, and, as part owner and pursuant to the direction of defendant Madelyn Delacruz, commenced to pay defendants one half of the monthly mortgage payment each month up until in or about July 2007. At that time plaintiff learned that defendants were attempting to sell the premises. When plaintiff advised defendants that she did not want to sell, plaintiff was informed for the first time by defendants that she was not an owner and that only defendants names appeared on the deed.

LAW AND APPLICATION

Defendants' summary judgment motion

Summary judgment is a drastic remedy as it deprives a party of his or her day in Court, and should be granted when it is clear that no triable issues of fact exists. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. Giuffrida v. Citibank Corp., 100 NY2d 72, 760 NYS2d 397, 790 NE2d 772 (2003). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez v. Prospect Hospital, supra at 324.

In support of the motion, defendants urge that the six year statute of limitations commenced from either the date of the closing or the date of the alleged misrepresentation in January or February 1995. Under such a theory, the statute of limitations would have expired no later than February, 2001. Defendants made a prima facie showing of their entitlement to summary judgment by establishing that the alleged causes of action accrued, at the latest, in 1995. Swift v. New York Medical College, 25 AD3d 686, 808 NYS2d 731 (2nd Dept. 2006).

In opposition, plaintiff has raised a triable issue of fact. While plaintiff does not dispute that the causes of action accrued in 1995, plaintiff does claim that defendants are equitably estopped from invoking the statute of limitations defense. This doctrine, a recognized exception to the statute of limitations defense, precludes invocation of the defense where defendant's affirmative wrongdoing produces a long delay between the time a cause of action accrues and the [*3]institution of the legal proceeding. See Reiner v. Jaeger, 50 AD3d 761, 762, 855 NYS2d 613 (2nd Dept. 2008).^[FN1] That is to say, a defendant cannot take affirmative steps to prevent a plaintiff from bringing a claim and then assert the statute of limitations as a defense. See Zumpano v. Quinn, 6 NY3d 666, 674, 816 NYS2d 703 (2006). Thus, the critical issue in an action such as this is whether the actions of the defendants contributed to plaintiff's failure to seek redress. Id. at 683. The answer to this question is generally a question of fact to be resolved at trial. See Putter v. North Shore University Hospital, 7 NY3d 548, 553, 825 NYS2d 435, 438 (2006).

It cannot be stated as a matter of law that during the twelve year period during which

Plaintiff moves to amend the complaint to the extent of seeking monetary damages in the ad damnum clause. It is well settled that leave to amend a pleading pursuant to CPLR 3025 (b) should be freely given unless the amendment sought is palpably improper or insufficient as a matter of law, or unless delay in seeking the amendment directly results in prejudice or surprise to the opposing party. See Castagne v. Barouh, 249 AD2d 257, 671 NYS2d 283 (2nd Dept. 1998). Delay alone is not sufficient to deny a motion to amend unless accompanied by significant prejudice. See Hanchett v. Graphic Technics, Inc., 243 AD2d 942, 943, 667 NYS2d 436

(3rd Dept. 1997). Prejudice means that the party opposing the amendment has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position. See Loomis v. Corinno Corp., 54 NY2d 18, 23, 444 NYS2d 571, 429 NE2d 90 (1981).

But plaintiff's original complaint alleges two causes of action, the first for imposition of a

constructive trust and the second for an accounting of the income and expenses.^[FN2] Both actions are equitable in nature seeking remedies other than monetary relief. Indeed, plaintiff's complaint and amended complaint both assert that there is "no adequate remedy at law," but plaintiff now seeks to add to the ad damnum clause a simple request for monetary and punitive damages without adding a cause of action at law. In such circumstances, plaintiff's motion must be denied with leave to renew upon a properly pleaded amended complaint alleging an action for fraud.

[*4]Defendants' motion to strike the note of issue and jury demand

Plaintiff filed a note of issue with a demand for a jury trial of all issues. Since plaintiff has been granted leave to renew her motion to amend her complaint, which motion (if made and decided) may or may not require additional discovery, the filing of the note of issue is premature. Further, by alleging the equitable claims referred to above, plaintiff waived her right to a trial by jury. See Kopel v. Chiulli, 209 AD2d 673, 619 NYS2d 954 (2nd Dept. 1994). Therefore, defendants' motion is granted and plaintiff's note of issue and jury demand are stricken.

CONCLUSION

In light of the above, defendants' motion for summary judgment is denied. Plaintiff's cross motion to amend the complaint is denied with leave to renew, and defendant's cross motion to strike the note of issue is granted. This constitutes the decision and order of the court.

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J.S.C.