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15-4100 

Wallace Wood Properties, LLC v. Wood

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER 

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 

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. 

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

27th 4 day of September, two thousand sixteen. 

5 

6 PRESENT: DENNIS JACOBS, 

7 BARRINGTON D. PARKER, 

8 Circuit Judges, 

9 

10 JANE A. RESTANI,* 

11 Judge. 

12 

13 - - - - - - - - - - - - - - - - - - - -X 

14 WALLACE WOOD PROPERTIES, LLC, 

15 Plaintiff-Appellant, 

16 

17 -v.- 15-4100 

18 

19 TATJANA WOOD, 

20 Defendant-Appellee. 

21 

22 - - - - - - - - - - - - - - - - - - - -X 

23 

24 FOR APPELLANT: PATRICK C. CARROLL, Law Offices of 

25 Patrick C. Carroll, Carle Place, NY 

 

* The Honorable Jane A. Restani, Judge for the United 

States Court of International Trade, sitting by designation.
2

1 (Patricia L. Minoux, North Miami 

2 Beach, FL on the brief). 

3 

4 FOR APPELLEE: JOEL L. HECKER, Abrams Deemer PLLC, 

5 New York, NY. 

6 

7 Appeal from a judgment of the United States District Court 

8 for the Southern District of New York (Swain, J.). 

9 

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 

11 DECREED that the judgment of the district court be AFFIRMED. 

12 

13 Wallace Wood Properties, LLC, (“WWP”) appeals from the 

14 judgment of the United States District Court for the Southern 

15 District of New York (Swain, J.) dismissing its complaint, which 

16 alleges conversion and replevin and seeks damages and the return 

17 of artwork allegedly in the possession of the artist’s ex-wife. 

18 We assume the parties’ familiarity with the underlying facts, 

19 the procedural history, and the issues presented for review. 

20 Wallace Wood was a comic book artist and illustrator. He 

21 and defendant divorced in the 1960s, and Wallace Wood died in 

22 1981. Wood’s will bequeathed his “bank accounts, whether 

23 savings, checking, Certificates of Deposit, or otherwise” to 

24 his ex-wife, and “[all] the rest, residue and remainder of [the] 

25 estate, inclusive of but not limited to . . . art work, whether 

26 published or unpublished,” to his friend John H. Robinson. 

27 Second Am. Compl. (“SAC”) ¶¶ 12-13. 

28 In 2006, Wallace Wood’s biographer, J. David Spurlock, 

29 visited Tatjana Wood in her home and saw Wallace Wood artwork 

30 in her possession. Id. ¶ 25. In 2009, he saw a copy of Wallace 

31 Wood’s will. Id. ¶ 22. In December 2011, he formed WWP--of 

32 which he is the “sole member and manager.” Id. ¶¶ 19, 21. In 

33 February 2012, Robinson assigned all interest in Wallace Wood’s 

34 property and copyrights to WWP, id. ¶ 16, in exchange for WWP’s 

35 agreement “to furnish, without charge, to John H. 

36 Robinson, . . . duplicate copies of any publications made by 

37 it . . . relating to the works of the said Wallace Wood.” 

38 Appellant’s App. A040. In March 2013, Spurlock demanded from 

39 Tatjana Wood the artwork he had seen in her home in 2006. She 

40 refused, and this suit was filed on October 28, 2014, alleging 
3

1 that the artwork had been in the possession of Marvel Comics 

2 but remained the property of Wallace Wood (and then of his estate 

3 and eventually of WWP), that Marvel wrongly sent it to Tatjana 

4 Wood in 2005, and that she wrongly kept it. 

5 The district court dismissed under Federal Rule of Civil 

6 Procedure 12(b)(6), citing the statute of limitations bar. The 

7 district court did not reach the defendant’s arguments that the 

8 claims are barred by laches and that WWP failed to plausibly 

9 allege ownership of sufficiently specific property. This 

10 appeal followed. 

11 We review de novo the district court’s dismissal of a 

12 complaint pursuant to Rule 12(b)(6), accepting all factual 

13 allegations in the complaint as true and drawing all reasonable 

14 inferences in the plaintiff’s favor. Chambers v. Time Warner, 

15 Inc., 282 F.3d 147, 152 (2d Cir. 2002). Granting a motion to 

16 dismiss on the basis of a lapsed limitations period is proper 

17 when it is clear on the face of the complaint that a claim is 

18 untimely. Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 

19 1999). 

20 The limitations period for conversion and replevin claims 

21 in New York is three years. Hoelzer v. City of Stamford, 933 

22 F.2d 1131, 1136 (2d Cir. 1991); New York v. Seventh Regiment Fund 

23 Inc., 98 N.Y.2d 249, 258 (2002). The present complaint was filed 

24 on October 28, 2014; so it is only timely if the pleaded claims 

25 accrued on or after October 28, 2011. A conversion action 

26 ordinarily accrues immediately upon the wrongful exercise of 

27 dominion over another’s property. 98 N.Y.2d at 259-60. In some 

28 circumstances New York’s demand-and-refusal rule delays the 

29 accrual of a claim until the plaintiff has demanded return of 

30 the property and been refused, id. at 260, in order to put 

31 good-faith purchasers of stolen property on notice that 

32 “continued possession will be regarded as wrongful by the true 

33 owner.” SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 183 

34 (2d Cir. 2000). But demand is not necessary “for the accrual 

35 of a conversion claim against a possessor who openly deals with 

36 the property as [her] own,” id., or when demand would be futile, 

37 as, for instance, when the defendant is a thief. Seventh 

38 Regiment, 98 N.Y.2d at 260. 
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1 WWP argues for the demand-and-refusal rule, because WWP 

2 specifically alleged that Tatjana Wood is not a thief, SAC ¶ 84, 

3 so its claims did not accrue until it demanded (through Spurlock) 

4 the artwork in 2013 and Wood refused its demand. Its complaint, 

5 however, is permeated by allegations that Wood knew she was not 

6 the rightful owner of the art: that she “had knowledge of the 

7 terms of the Will,” id. ¶ 42, “knew that the actual owner of 

8 the Original Artwork was . . . not her,” id. ¶ 88, “fraudulently 

9 concealed the identity, location and possession of the Original 

10 Artwork,” id. ¶ 89, etc. 

11 Moreover, it is clear from the face of the complaint that 

12 Wood openly dealt with the artwork as her own at least as early 

13 as 2006, when she displayed it to Spurlock in her home, id. ¶ 25, 

14 and certainly no later than “in or around 2010,” when she sold 

15 two pieces to Spurlock. Id. ¶ 115. Any cause of action 

16 therefore must have accrued long before October 28, 2011, and 

17 was already time-barred when the complaint was filed in 2014. 

18 Accordingly, and finding no merit in plaintiffs’ other 

19 arguments, we hereby AFFIRM the judgment of the district court. 

20 FOR THE COURT: 

21 CATHERINE O’HAGAN WOLFE, CLERK 

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