Hoffman v. Cannone

Full title: MARION HOFFMAN, Appellant, v. ANTHONY F. CANNONE, Respondent

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 21, 1994

206 A.D.2d 740 (N.Y. App. Div. 1994)

614 N.Y.S.2d 799

Opinion

July 21, 1994

Appeal from the Supreme Court, Rensselaer County (Canfield, J.).

White, J.

On March 6, 1985, the parties entered into a separation agreement that was subsequently incorporated, but not merged, in their decree of divorce entered on May 9, 1985. The separation agreement provided, inter alia, that plaintiff relinquished her claims to "all savings accounts, certificates of deposit, bonds, stock, mutual funds, individual retirement accounts, pensions" and that defendant was not obligated to pay her maintenance. The agreement further provided that defendant would have custody of the parties' minor child and be responsible for the payment of the mortgage and the carrying charges on the marital residence until it was sold. Apparently after the dissolution of her second marriage, plaintiff in August 1992 commenced this action to set aside the agreement on the grounds that defendant engaged in over-reaching and fraud, that the agreement was not supported by consideration and that it was against public policy. Following the service of his answer, defendant moved, inter alia, for leave to amend his answer to assert the affirmative defense of the Statute of Limitations and for summary judgment. Supreme Court granted both motions, giving rise to this appeal.^_

_ We deem plaintiff's appeal of that part of Supreme Court's order which granted defendant leave to amend his answer abandoned since her brief does not address this issue.

Supreme Court properly dismissed plaintiff's second and third causes of action since a cause of action for rescission of a contract is governed by the six-year Statute of Limitations (see, Bowes Co. v. American Druggists' Ins. Co., 96 A.D.2d 1023, affd 61 N.Y.2d 750; see also, CPLR 213). Where, as in plaintiff's first cause of action, rescission is sought on the ground of actual fraud, the Statute of Limitations is six years from the commission of the fraud or two years from when the plaintiff discovered or should have discovered the fraud, whichever is later (see, Dybowski v. Dybowska, 146 A.D.2d 604; Abbate v. Abbate, 82 A.D.2d 368; CPLR 203 [g]; see also, CPLR 213; cf., Riley v. Riley, 179 A.D.2d 750). Generally, the question of when the plaintiff discovered, or should have discovered, the alleged fraud is a mixed question of law and fact which should not be resolved summarily unless it conclusively appears that the plaintiff had knowledge of facts which should have caused him or her to inquire and discover the alleged fraud (see, Rattner v. York, 174 A.D.2d 718; Del Vecchio v. Nassau County, 118 A.D.2d 615).

Plaintiff's cause of action is predicated upon the alleged representation by defendant's attorney to plaintiff that, since she was seeking the divorce, she was not entitled to receive any form of distribution, maintenance or custody. She maintains that she did not learn that this representation was false until 1991 when she consulted with an attorney. Given the fact that the alleged representation by defendant's attorney was directly contravened by the separation agreement which provided that plaintiff was to receive one half of the proceeds of the sale of the marital residence, and as plaintiff acknowledged in the agreement that she was aware of and understood the provisions of the Equitable Distribution Law, we find that plaintiff possessed sufficient information to prompt an inquiry that would have led to the discovery of the alleged fraud within six years of its commission. Thus, Supreme Court also properly dismissed this cause of action (see, Garguilio v. Garguilio, 201 A.D.2d 617; Pommer v. Trustco Bank, 183 A.D.2d 976, lv dismissed in part, lv denied in part 81 N.Y.2d 758).

Mercure, J.P., Casey, Weiss and Peters, JJ., concur. Ordered that the order is affirmed, without costs.