1

15-4100 

Wallace Wood Properties, LLC v. Wood

1 UNITED STATES COURT OF APPEALS 

2 FOR THE SECOND CIRCUIT

3 

4 AMENDED SUMMARY ORDER

5 

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

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

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

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

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

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

12 

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

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

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

17th 16 day of November, two thousand sixteen. 

17 

18 PRESENT: DENNIS JACOBS, 

19 BARRINGTON D. PARKER, 

20 Circuit Judges, 

21 JANE A. RESTANI,* 

22 Judge. 

23 

24 - - - - - - - - - - - - - - - - - - - -X 

25 WALLACE WOOD PROPERTIES, LLC, 

26 Plaintiff-Appellant, 

27 

28 -v.- 15-4100 

29 

30 TATJANA WOOD, 

31 Defendant-Appellee. 

32 

33 - - - - - - - - - - - - - - - - - - - -X 

34 

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

36 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: CYNTHIA S. ARATO (Joel L. Hecker, 

5 on the brief), Abrams Deemer PLLC, 

6 New York, NY. 

7 

8 Appeal from a judgment of the United States District Court 

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

10 

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

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

13 

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

15 judgment of the United States District Court for the Southern 

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

17 alleges conversion and replevin and seeks damages and the return 

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

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

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

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

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

23 1981. Wood’s will bequeathed his “bank accounts, whether 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

40 Tatjana Wood the artwork he had seen in her home in 2006. She 
3

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

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

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

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

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

6 The district court dismissed under Federal Rule of Civil 

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

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

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

10 allege ownership of sufficiently specific property. This 

11 appeal followed. 

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

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

14 allegations in the complaint as true and drawing all reasonable 

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

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

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

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

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

20 1999). 

21 The limitations period for conversion and replevin claims 

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

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

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

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

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

27 ordinarily accrues immediately upon the wrongful exercise of 

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

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

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

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

32 good-faith purchasers of stolen property on notice that 

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

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

35 (2d Cir. 2000). But demand is not necessary “for the accrual 

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

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

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

39 Regiment, 98 N.Y.2d at 260. 
4

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