Summary
denying motion to dismiss because "triable issues of fact exist with respect to the time plaintiffs discovered or should, with due diligence, reasonably have discovered the alleged fraud"
Summary of this case from Lentini v. William Capital Assocs.Opinion
June 1, 1993
Appeal from the Supreme Court, New York County (Carol Huff, J.).
These consolidated actions, commenced in 1988 and 1989, involve an intra-family dispute concerning allegations, inter alia, that defendant Edward Slade and his now deceased father, who was plaintiff Belle Endervelt's brother, and legal counsel with respect to most of the transactions complained of, defrauded plaintiff and her children of their rightful interests, as distributees of the estate of her husband, in properties owned by him, commencing with the 1972 forgery of a deed to some of the properties and ending in February 1988, with defendant's refusal to turn over the proceeds of a sale of plaintiffs' property.
The IAS Court properly declined to dismiss plaintiffs' claims with respect to the 1972 deed transfer and the transfer of certain properties in 1973 and 1977, as time-barred, since triable issues of fact exist with respect to the time plaintiffs discovered or should, with due diligence, reasonably have discovered the alleged fraud (see, Trepuk v. Frank, 44 N.Y.2d 723; see also, KE Trading Shipping v. Radmar Trading Corp., 174 A.D.2d 346). Further, a triable issue of fact exists as to whether or not defendants should be estopped from asserting the statute of limitations because of the attorney-client relationship which existed between plaintiff Belle Endervelt and her brother Aleck Slade, defendant Edward Slade's father, which relationship continued for many years after the allegedly wrongful 1972 deed transfer (see, Simcuski v. Saeli, 44 N.Y.2d 442).
Contrary to defendants' contention, a review of the complaint, which is dispositive in determining whether a party is entitled to a jury trial (Kaplan v. Long Is. Univ., 116 A.D.2d 508, 509), demonstrates plaintiffs are entitled to a jury trial since a sum of money alone can provide full relief to them (Murphy v. American Home Prods. Corp., 136 A.D.2d 229, 232; see, Poley v. Rochester Community Sav. Bank, 184 A.D.2d 1027; Hebranko v. Bioline Labs., 149 A.D.2d 567; Cowper Co. v. Buffalo Hotel Dev. Venture, 99 A.D.2d 19).
We have considered defendants' remaining contentions and find them to be without merit.
Concur — Carro, J.P., Ellerin, Wallach, Ross and Rubin, JJ.