1 15-4100 Wallace Wood Properties, LLC v. Wood



### UNITED STATES COURT OF APPEALS
**FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER**

**FILED ON OR AFTER J**  **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF** 
**A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY**

**ORDER IN**  **A DOCUMENT**  **FILED WITH**  **THIS COURT**  **, A**  **PARTY MUST**  **CITE EITHER**  **THE F**  **EDERAL A**  **PPENDIX**

**OR AN**  **ELECTRONIC DATABASE**  **( WITH**  **THE NOTATION**  **‘ SUMMARY**  **ORDER ’).**  **A PARTY**  **CITING A**  **SUMMARY**

**ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .** 

**At a stated term of the United States Court of Appeals for** 1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3
**27 th**  **day of September, two thousand sixteen.** 4

5 **PRESENT: DENNIS JACOBS,** 6 **BARRINGTON D. PARKER,** 7 **Circuit Judges,** 8
9 **JANE A. RESTANI,*** 10 **Judge.** 11

12

- - - - - - - - - - - - - - - - - - - -X 13 **WALLACE WOOD PROPERTIES, LLC,** 14 **Plaintiff-Appellant,** 15
16
**-v.- 15-4100** 17
18 **TATJANA WOOD,** 19 **Defendant-Appellee.** 20

21

- - - - - - - - - - - - - - - - - - - -X 22
23
**FOR APPELLANT:** PATRICK C. CARROLL, Law Offices of 24 Patrick C. Carroll, Carle Place, NY 25

* The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.2 (Patricia L. Minoux, North Miami 1 Beach, FL on the brief). 2
3
**FOR APPELLEE:** JOEL L. HECKER, Abrams Deemer PLLC, 4 New York, NY. 5
6 Appeal from a judgment of the United States District Court 7 for the Southern District of New York (Swain, J.). 8
9 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND** 10
**DECREED** that the judgment of the district court be **AFFIRMED**

. 11

12 Wallace Wood Properties, LLC, (“WWP”) appeals from the 13 judgment of the United States District Court for the Southern 14 District of New York (Swain, J.) dismissing its complaint, which 15 alleges conversion and replevin and seeks damages and the return 16 of artwork allegedly in the possession of the artist’s ex-wife. 17 We assume the parties’ familiarity with the underlying facts, 18 the procedural history, and the issues presented for review. 19

Wallace Wood was a comic book artist and illustrator. He 20 and defendant divorced in the 1960s, and Wallace Wood died in 21 1981. Wood’s will bequeathed his “bank accounts, whether 22 savings, checking, Certificates of Deposit, or otherwise” to 23 his ex-wife, and “[all] the rest, residue and remainder of [the] 24 estate, inclusive of but not limited to . . . art work, whether 25 published or unpublished,” to his friend John H. Robinson. 26 Second Am. Compl. (“SAC”) ¶¶ 12-13. 27

In 2006, Wallace Wood’s biographer, J. David Spurlock, 28 visited Tatjana Wood in her home and saw Wallace Wood artwork 29 in her possession. Id. ¶ 25. In 2009, he saw a copy of Wallace 30 Wood’s will. Id. ¶ 22. In December 2011, he formed WWP--of 31 which he is the “sole member and manager.” Id. ¶¶ 19, 21. In 32 February 2012, Robinson assigned all interest in Wallace Wood’s 33 property and copyrights to WWP, id. ¶ 16, in exchange for WWP’s 34 agreement “to furnish, without charge, to John H. 35 Robinson, . . . duplicate copies of any publications made by 36 it . . . relating to the works of the said Wallace Wood.” 37 Appellant’s App. A040. In March 2013, Spurlock demanded from 38 Tatjana Wood the artwork he had seen in her home in 2006. She 39 refused, and this suit was filed on October 28, 2014, alleging 403 that the artwork had been in the possession of Marvel Comics 1 but remained the property of Wallace Wood (and then of his estate 2 and eventually of WWP), that Marvel wrongly sent it to Tatjana 3 Wood in 2005, and that she wrongly kept it. 4

The district court dismissed under Federal Rule of Civil 5 Procedure 12(b)(6), citing the statute of limitations bar. The 6 district court did not reach the defendant’s arguments that the 7 claims are barred by laches and that WWP failed to plausibly 8 allege ownership of sufficiently specific property. This 9 appeal followed. 10

We review de novo the district court’s dismissal of a 11 complaint pursuant to Rule 12(b)(6), accepting all factual 12 allegations in the complaint as true and drawing all reasonable 13 inferences in the plaintiff’s favor. Chambers v. Time Warner, 14 Inc., 282 F.3d 147, 152 (2d Cir. 2002). Granting a motion to 15 dismiss on the basis of a lapsed limitations period is proper 16 when it is clear on the face of the complaint that a claim is 17 untimely. Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 18 1999). 19

The limitations period for conversion and replevin claims 20 in New York is three years. Hoelzer v. City of Stamford, 933 21 F.2d 1131, 1136 (2d Cir. 1991); New York v. Seventh Regiment Fund 22 Inc., 98 N.Y.2d 249, 258 (2002). The present complaint was filed 23 on October 28, 2014; so it is on ly timely if the pleaded claims 24 accrued on or after October 28, 2011. A conversion action 25 ordinarily accrues immediately upon the wrongful exercise of 26 dominion over another’s property. 98 N.Y.2d at 259-60. In some 27 circumstances New York’s demand-and-refusal rule delays the 28 accrual of a claim until the plaintiff has demanded return of 29 the property and been refused, id. at 260, in order to put 30 good-faith purchasers of stolen property on notice that 31 “continued possession will be regarded as wrongful by the true 32 owner.” SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 183 33 (2d Cir. 2000). But demand is not necessary “for the accrual 34 of a conversion claim against a possessor who openly deals with 35 the property as [her] own,” id., or when demand would be futile, 36 as, for instance, when the defendant is a thief. Seventh 37 Regiment, 98 N.Y.2d at 260. 384 WWP argues for the demand-and-refusal rule, because WWP 1 specifically alleged that Tatjana Wood is not a thief, SAC ¶ 84, 2

so its claims did not accrue until it demanded (through Spurlock) 3 the artwork in 2013 and Wood refused its demand. Its complaint, 4 however, is permeated by allegations that Wood knew she was not 5 the rightful owner of the art: that she “had knowledge of the 6 terms of the Will,” id. ¶ 42, “knew that the actual owner of 7 the Original Artwork was . . . not her,” id. ¶ 88, “fraudulently 8 concealed the identity, location and possession of the Original 9 Artwork,” id. ¶ 89, etc. 10

Moreover, it is clear from the face of the complaint that 11 Wood openly dealt with the artwork as her own at least as early 12 as 2006, when she displayed it to Spurlock in her home, id. ¶ 25, 13 and certainly no later than “in or around 2010,” when she sold 14 two pieces to Spurlock. Id. ¶ 115. Any cause of action 15 therefore must have accrued long bef ore October 28, 2011, and 16 was already time-barred when the com plaint was filed in 2014. 17

Accordingly, and finding no merit in plaintiffs’ other 18 arguments, we hereby **AFFIRM** the judgment of the district court. 19

FOR THE COURT: 20 CATHERINE O’HAGAN WOLFE, CLERK 21

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