Opinion
2014-03-12
Brooks BANKER, respondent, v. Salvatore VITANZA, et al., appellants.
William J. Florence, Jr., Peekskill, N.Y. (Richard J. O'Keeffe of counsel), for appellant Salvatore Vitanza. Rizzo & Kelley, Poughkeepsie, N.Y. (Christina M. Bookless of counsel), for appellant Michael J. Tighe.
William J. Florence, Jr., Peekskill, N.Y. (Richard J. O'Keeffe of counsel), for appellant Salvatore Vitanza. Rizzo & Kelley, Poughkeepsie, N.Y. (Christina M. Bookless of counsel), for appellant Michael J. Tighe.
Brooks Banker, New York, N.Y., respondent pro se.
In an action to recover damages for fraud, the defendants separately appeal from an order of the Supreme Court, Putnam County (Lubell, J.), dated April 25, 2013, which denied their separate motions pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them as barred by the applicable statute of limitations.
ORDERED that the order is reversed, on the law, with one bill of costs, and the defendants' separate motions to dismiss the complaint insofar as asserted against each of them are granted.
A cause of action alleging fraud must be commenced within six years after the date on which the cause of action accrued or within two years after the time the plaintiff could, with reasonable diligence, have discovered the alleged fraud, whichever is later ( see CPLR 213[8]; Espie v. Murphy, 35 A.D.3d 346, 347, 825 N.Y.S.2d 537). “The test as to when a plaintiff, with reasonable diligence, could have discovered an alleged fraud is an objective one” ( Prand Corp. v. County of Suffolk, 62 A.D.3d 681, 682, 878 N.Y.S.2d 198;see Prestandrea v. Stein, 262 A.D.2d 621, 622, 692 N.Y.S.2d 689;TMG–II v. Price Waterhouse & Co., 175 A.D.2d 21, 22–23, 572 N.Y.S.2d 6).
Here, the plaintiff did not commence the instant action until more than six years after the date on which the fraud cause of action accrued and more than two years after he, with reasonable diligence, could have discovered the alleged fraud ( see Mizuno v. Barak, 113 A.D.3d 825, 980 N.Y.S.2d 473;Prand Corp. v. County of Suffolk, 62 A.D.3d at 682, 878 N.Y.S.2d 198;Espie v. Murphy, 35 A.D.3d at 347, 825 N.Y.S.2d 537;TMG–II v. Price Waterhouse & Co., 175 A.D.2d at 22–23, 572 N.Y.S.2d 6). Accordingly, the Supreme Court should have granted the defendants' separate motions pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them as time-barred. MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.