Hersko v. Hersko: Declaratory Relief Sounding in Fraud Is Time-Barred at Six Years; RPAPL Article 15 Forged-Deed Claims Run Ten Years; Oral Promises to Record a Mortgage Are Barred by the Statute of Frauds; Unjust Enrichment Cannot Duplicate Other Claims

Introduction

In Hersko v Hersko (2026 NY Slip Op 00120), the Appellate Division, Second Department reviewed a Kings County order denying a CPLR 3211(a) pre-answer motion to dismiss multiple claims arising from alleged intra-family misuse of funds and title transfers involving four Brooklyn properties.

The plaintiffs (including Barry Hersko and related entities) alleged that defendant Denissi Hersko and others diverted funds, obtained title through fraud (including a purportedly forged deed), failed to record promised mortgages to secure loans, and unjustly benefited from transactions involving properties located at 1322 59th Street, 1639 59th Street, 1368 58th Street, and 5023 15th Avenue. The defendants sought dismissal, cancellation of notices of pendency, and attorneys’ fees.

The appeal primarily turned on (i) which limitations periods applied to various theories (declaratory judgment, RPAPL article 15, constructive trust, unjust enrichment), (ii) whether alleged oral agreements to record mortgages were enforceable, (iii) whether fiduciary-duty pleading was sufficient in a family/business context, and (iv) whether unjust enrichment was duplicative of other pleaded claims.

Summary of the Opinion

The Second Department modified the Supreme Court’s order. It held that several claims should have been dismissed at the pleading stage, while others were adequately stated and timely:

• Survived dismissal: the third cause of action under RPAPL article 15 to cancel the deed to 1322 59th Street (timely under a ten-year limitations period); breach of fiduciary duty claims against Denissi (the seventh and tenth causes of action); the eighth cause of action to cancel the deed to 1368 58th Street; and the ninth cause of action to impose a constructive trust on 1368 58th Street.
• Dismissed: the first and second causes of action for declaratory relief sounding in fraud (untimely under a six-year limitations period); the fourth (constructive trust as to 1322 59th Street) and fifth (unjust enrichment) causes of action (time-barred); the sixth and thirteenth breach of contract causes of action (barred by the statute of frauds because they concerned an interest in real property and were not in writing); and the eleventh unjust enrichment cause of action (duplicative of other claims).

Analysis

Precedents Cited

1) RPAPL Article 15, forged deeds, and the ten-year period

• McWhite v I & I Realty Group, LLC, 210 AD3d 1069:
  Cited for the proposition that RPAPL 1501(1) allows a person claiming an estate or interest in real property to compel determination of an adverse claim. The court used this framing to uphold the sufficiency of the third cause of action, which alleged Barry funded the purchase and Denissi’s claimed interest arose from a forged deed.
• Faison v Lewis, 25 NY3d 220; Simmons v Bell, 220 AD3d 647:
  These authorities supported the court’s limitations analysis: a claim seeking to set aside a forged deed is subject to a ten-year limitations period (CPLR 212[a]), not six years. That distinction was decisive in sustaining the RPAPL article 15 deed-cancellation claim as timely.

2) Fiduciary duty in close familial/business relationships

• Berkovits v Berkovits, 190 AD3d 911:
  Cited to support the pleading sufficiency of a fiduciary relationship based on a “close familial and business relationship.” The court relied on this principle to hold that the seventh and tenth causes of action adequately alleged that Denissi owed and breached fiduciary duties in connection with the purchases of 1639 59th Street and 1368 58th Street.

3) Constructive trust doctrine and flexibility

• Simonds v Simonds, 45 NY2d 233:
  Quoted for the classic equitable rationale that constructive trust is the mechanism through which equity prevents a title holder from retaining beneficial interest in “good conscience.” This anchored the court’s acceptance of constructive trust as an available remedy on the pleaded facts.
• Galasso, Langione & Botter, LLP v Galasso, 176 AD3d 1176:
  Provided the standard four elements—(1) confidential or fiduciary relationship, (2) promise, (3) transfer in reliance, and (4) unjust enrichment—and supported the court’s conclusion that the ninth cause of action was adequately pleaded. It was also cited for the important point that lack of prior ownership by plaintiffs is not necessarily fatal to a constructive trust theory, reinforcing equity’s focus on unjust enrichment and reliance rather than formal title history.
• Chavez v Morales, 232 AD3d 757:
  Cited for two separate propositions: (i) constructive trust’s flexibility as an equitable remedy and (ii) that constructive trust and unjust enrichment claims are governed by a six-year limitations period accruing at the time of the wrongful act giving rise to restitution.

4) Declaratory judgments borrow the limitations period of the underlying claim

• Waldman v 853 St. Nicholas Realty Corp., 64 AD3d 585:
  Cited for the rule that declaratory judgment actions do not have their own limitations period; instead, the period depends on the nature of the relief sought.
• Mahabir v Snyder Realty Group, Inc., 217 AD3d 850; Schulman v Schulman, 166 AD3d 833:
  Used to apply the borrowed-period doctrine to declarations premised on fraud and to uphold dismissal where the alleged fraud occurred more than six years before suit. The court treated the first and second declaratory causes as fraud-based and thus governed by CPLR 213(8)’s six-year period.

5) Statute of frauds and promised mortgages

• Cancilla v O'Rourke, 232 AD3d 1175; Duffy v Leteri, 222 AD3d 838:
  Cited for the principle that contracts transferring or creating an interest in real property must be in writing under General Obligations Law § 5-703(1). The court applied this to agreements to “assign or obtain a mortgage,” because a mortgage is an interest in real property.
• Barretti v Detore, 95 AD3d 803:
  Reinforced the conclusion that oral agreements to transfer/obtain a mortgage are barred by the statute of frauds, leading to dismissal of the sixth and thirteenth breach of contract claims.

6) Unjust enrichment cannot be a duplicative “catchall”

• Corsello v Verizon N.Y., Inc., 18 NY3d 777:
  Quoted for the limiting principle that unjust enrichment is not available when it duplicates contract or tort claims and is not a fallback when other theories are pleaded. On that basis, the court dismissed the eleventh unjust enrichment claim because the plaintiffs also pleaded deed cancellation, constructive trust, and breach of fiduciary duty based on the same nucleus of facts.

Legal Reasoning

1) The court separated “title-clearing” from “fraud-based declarations”

A central move in the opinion is its careful categorization of claims:

• The RPAPL article 15 claim (third cause of action) was treated as a title-clearing action to determine adverse claims, timely under CPLR 212(a) (ten years) when grounded in allegations of a forged deed.
• The declaratory judgment claims (first and second causes) were treated as seeking declarations premised on fraud, thus borrowing the six-year period of CPLR 213(8). Because the pleadings placed the challenged fraud more than six years before commencement, dismissal followed.

The practical lesson is that labels (“declaratory judgment”) do not control; the court looks through to the substantive basis for the declaration.

2) Constructive trust: flexible equity, but still subject to a six-year clock

The court simultaneously (i) reaffirmed constructive trust’s equitable flexibility and (ii) enforced limitations rules strictly:

• As to 1368 58th Street, allegations that plaintiffs entrusted funds to Denissi to buy in Barry’s name but she bought in her and Khan’s names sufficiently pleaded the elements (confidential relationship, promise/instruction, transfer of funds in reliance, unjust enrichment). The absence of plaintiffs’ prior ownership was not fatal.
• As to 1322 59th Street, the constructive trust claim (fourth cause) was dismissed as time-barred because it accrued at the time of the alleged wrongful acquisition (more than six years pre-suit).

3) Fiduciary duty: family-plus-business relationships can support duty at the pleading stage

For the seventh and tenth causes of action, the court held it was enough at the motion-to-dismiss stage to allege a close familial and business relationship coupled with allegations that Denissi “betrayed” plaintiffs’ interests in the property purchases. The court treated that relational context as capable of supporting fiduciary obligations beyond an arm’s-length transaction.

4) Statute of frauds: oral promises to provide mortgage security are unenforceable as contracts

The sixth and thirteenth causes alleged breaches of agreements to record/obtain a mortgage in Barry’s favor to secure lent funds. The court treated those agreements as contracts creating an interest in real property, which must be in writing under General Obligations Law § 5-703(1). Because plaintiffs did not dispute the absence of a writing, dismissal was mandated—regardless of alleged reliance or fairness concerns typically argued in equity.

5) Unjust enrichment: removed where it merely repackages other claims

The eleventh cause of action was dismissed not because unjust enrichment is unavailable in real estate disputes, but because the plaintiffs had already pleaded more tailored theories—deed cancellation under RPAPL article 15, constructive trust, and breach of fiduciary duty—based on the same facts. Under Corsello v Verizon N.Y., Inc., unjust enrichment cannot serve as a redundant substitute.

Impact

• Pleading strategy in family real estate disputes: The decision underscores that plaintiffs must align each remedy with the correct limitations period. A forged-deed/title-clearing theory under RPAPL article 15 may survive long after fraud-based declaratory and restitutionary theories expire.
• Declaratory judgment is not a limitations workaround: Parties cannot extend time by recasting fraud allegations as requests for “declarations.” Courts will borrow the underlying limitations period.
• Mortgage-security promises need writings: Informal family lending arrangements that include promises to record mortgages remain vulnerable to dismissal if not memorialized in writing, even where funds were actually advanced.
• Constrained use of unjust enrichment: Pleaders should expect unjust enrichment to be trimmed if it duplicates more specific tort, fiduciary, or equitable title claims.
• Fiduciary duty survives early motions in relationship-driven transactions: Where a complaint plausibly alleges family/business trust and betrayal in handling transactions, courts may allow fiduciary-duty claims to proceed past CPLR 3211.

Complex Concepts Simplified

• CPLR 3211(a) motion to dismiss: A pre-answer request to dismiss claims based on defects apparent from pleadings or legal bars (like statutes of limitations or statute of frauds). The court assumes pleaded facts are true and asks whether a viable legal claim is stated.
• RPAPL article 15 / RPAPL 1501(1): New York’s procedure for “quiet title” type relief—used to determine who has valid interests in real property and to remove adverse claims (including claims based on forged deeds).
• Statute of limitations (six vs. ten years here): A filing deadline. In this case, fraud-based declarations and restitutionary claims (constructive trust/unjust enrichment) were treated as subject to six years, while the forged-deed RPAPL article 15 theory was treated as subject to ten years.
• Constructive trust: An equitable remedy where the court treats the title holder as holding property for someone else because retaining it would be unjust. It does not require the claimant to have held prior title if the circumstances show unjust enrichment tied to a relationship, promise/instruction, and reliance.
• Statute of frauds (General Obligations Law § 5-703[1]): Certain agreements must be in writing to be enforceable—especially those creating or transferring interests in real property. A mortgage is such an interest; an oral promise to provide mortgage security is typically unenforceable as a contract.
• Duplicative unjust enrichment: Unjust enrichment is meant for “gap-filling” situations. If other pleaded claims already address the alleged wrong (e.g., fiduciary duty, deed cancellation, constructive trust), a separate unjust enrichment count may be dismissed as redundant.

Conclusion

Hersko v Hersko draws sharp procedural and remedial boundaries in real-property disputes arising from informal, family-centered dealings. It confirms that courts will (i) apply a ten-year period to a properly pleaded RPAPL article 15 forged-deed challenge while (ii) dismissing fraud-based declaratory relief and restitutionary theories that fall outside six years; (iii) enforce the statute of frauds against unwritten promises to record mortgages; and (iv) eliminate unjust enrichment claims that merely duplicate more specific causes of action. The decision is a cautionary roadmap for both litigators and families who mix trust-based relationships with high-stakes real estate transactions.