Actions based upon mistake or fraud also have a six-year limitation from the time the mistake or fraud is committed (see, CPLR ยง 213, ยง 213). In the absence of continuing duress or undue influence, an action for the rescission of a prenuptial contract accrues and the Statute of Limitations begins to run once the agreement is executed (see, Anonymous v. Anonymous, 233 A.D.2d 350; Pacchiana v. Pacchiana, 94 A.D.2d 721; Pommer v. Trustco Bank, 183 A.D.2d 976). The prenuptial agreement at issue was entered into at the plaintiff's request and was signed on February 22, 1990.
In July 2004, the wife commenced the instant action, seeking, inter alia, a divorce, spousal support necessaries, spousal support pursuant to Family Court Act ยง 412, and rescission of the prenuptial agreement. Upon his motion for summary judgment, the husband made a prima facie showing that the fourth cause of action, seeking rescission of the parties' prenuptial agreement, was time-barred by the six-year statute of limitations ( see CPLR 213; DeMille v DeMille, 5 AD3d 428, 429; Anonymous v Anonymous, 233 AD2d 350, 351). The husband also made a prima facie showing that the agreement was valid, enforceable, and dispositive as to equitable distribution and spousal support, thereby requiring dismissal of so much of the second and third causes of action as sought spousal support pursuant to Family Court Act ยง 412 and reimbursement for spousal support necessaries ( see Rubin v Rubin, 33 AD3d 983, 984; cf. Kerr v Kerr, 8 AD3d 626).
The Supreme Court should have granted the plaintiff's motion to dismiss the counterclaim. A cause of action to rescind the provisions of a marital agreement which allocates property must be commenced within six years of the execution of the agreement (see,CPLR 213[1]; Djavaheri-Saatchi v. Djavaheri-Saatchi, 236 A.D.2d 583; Anonymous v. Anonymous, 233 A.D.2d 350; Pacchiana v. Pacchiana, 94 A.D.2d 721). Contrary to the defendant's contention, the Statute of Limitations was not tolled during the marriage (see,Scheuer v. Scheuer, 308 N.Y. 447; Dunning v. Dunning, 300 N.Y. 341).
Ordered that the appellant is awarded one bill of costs. The prenuptial agreement executed by the parties in 1979, which included property and maintenance provisions, has been upheld by this Court ( see, Anonymous v. Anonymous, 233 A.D.2d 350; Anonymous v. Anonymous, 258 A.D.2d 547 [decided herewith]). Moreover, it is undisputed that the plaintiff husband is a multi-millionaire and is willing and able to pay any reasonable child support ordered by the court.
The third cause of action of the complaint was to rescind the parties' antenuptial agreement dated March 5, 1982. The husband moved to dismiss that cause of action as time-barred by the six-year Statute of Limitations because the action was not commenced until December 1996 ( see, Djavaheri-Saatchi v. Djahaveri-Saatchi, 236 A.D.2d 583; Anonymous v. Anonymous, 233 A.D.2d 350). The wife contended that the cause of action was not time-barred because the Statute of Limitations was tolled by duress. When duress is part of the cause of action alleged, the Statute of Limitations is tolled until the duress terminates, as such conduct is considered a continuing wrong ( see, Zoe G. v. Frederick F.G., 208 A.D.2d 675). Viewing the evidence in a light most favorable to the wife, she has not met her burden of demonstrating such continuing duress as would toll the running of the Statute of Limitations.
Ordered that the interlocutory judgment is affirmed, with costs. The trial court correctly concluded that the plaintiffs challenge to the validity of the parties' prenuptial agreement was time-barred ( see, Anonymous v Anonymous, 233 AD2d 350; Pacchiana v Pacchiana, 94 AD2d 721; see also, Pommer v Trustco Bank, 183 AD2d 976).
Her counsel's reliance on the decision in Bloomfield (supra) is misplaced. First, while this Court notes its agreement with the reasoning of the Appellate Division, First Department, in Bloomfield (supra) it is constrained to follow the well-established law in the Appellate Division, Second Department, which unequivocally holds that the existence of a viable marriage does not toll the Statute of Limitations with regard to challenges to prenuptial agreements (see, Rubin v Rubin, 275 AD2d 404; Rosenbaum v Rosenbaum, 271 AD2d 427; Anonymous v Anonymous, 233 AD2d 350; Pacchiana v Pacchiana, 94 AD2d 721). Further, the wife's causes of action at issue herein sounding in tort are not properly compared to a cause of action to set aside a prenuptial agreement. A spouse who has been physically injured by the negligent or intentional conduct of the other spouse, whether by virtue of an automobile accident, an assault or by contracting a sexually transmitted disease, is obligated by the laws of this State to seek redress within the applicable time period established by statute.
First, while this Court notes its agreement with the reasoning of the Appellate Division, First Department, in Bloomfield, supra, it is constrained to follow the well established law in the Appellate Division, Second Department which unequivocally holds that the existence of a viable marriage does not toll the Statute of Limitations with regard to challenges to prenuptial agreements (see, Rubin v. Rubin, 275 A.D.2d 404; Rosenbaum v. Rosenbaum, 271 A.D.2d 427; Anonymous v. Anonymous, 233 A.D.2d 350; Pacchiana v. Pacchiana 94 A.D.2d 721).
In keeping with the strong public policy in favor of individuals resolving their own family disputes ( see, Scheinkman, New York Law of Domestic Relations ยง 6.1, at 123), subdivision (3) authorizes spouses or prospective spouses to contract out of the elaborate statutory system and provide for matters such as inheritance, distribution or division of property, spousal support, and child custody and care in the event that the marriage ends." ( Matisoff v. Dobi, 90 N.Y.2d 127, 132; see, Avitzur v. Avitzur, 58 N.Y.2d 108, cert denied 464 U.S. 817.) The Appellate Division, Second Department, has held that actions which seek to rescind the provisions of a prenuptial agreement which allocate property must be commenced within six years of the execution of the agreement since that is when the cause of action accrues ( Anonymous v. Anonymous, 233 A.D.2d 350, 351; Pacchiana v. Pacchiana, 94 A.D.2d 721; CPLR 213). Thus, defendant's 1997 claim of mutual mistake in the execution of the 1985 contract is time barred (CPLR 213, [2]).