Opinion
February 25, 1971
Order, Supreme Court, New York County, entered on September 10, 1970, denying motion to dismiss the first cause of action, and dismissing the second cause of action with leave to serve an amended complaint, unanimously reversed, on the law, without costs and without disbursements, the complaint dismissed as to defendants-appellants, and the action severed as to them. The first cause of action, sounding in fraud, and commenced on September 30, 1969, is based on a stock sale agreement dated March 28, 1958, at or before which time the cause of action accrued. Even allowing for the unpersuasive claim of mental illness tolling the statute, the action is time-barred pursuant to CPLR 208. Further, since the circumstances sustain only constructive fraud, the statute runs from the accrual of the cause of action. (CPLR 213, subd. 1; 208.) Even if we read the complaint to sustain actual fraud, the action is time-barred pursuant to CPLR 213 (subd. 9) and CPLR 203 (subd. [f]), since she consulted an attorney in 1967. The second cause of action, substantially the same as the first, and based on allegedly fraudulent acts inducing the separation agreement of 1958, is similarly barred, and plaintiff not having stated a desire to replead or demonstrate grounds supporting a cause of action on the separation agreement, the motion to dismiss is granted, and the complaint dismissed. (CPLR 3211, subd. [e].) Appeal from order of said court, entered on June 16, 1970 dismissed.
Concur — Stevens, P.J., Capozzoli, McGivern, Markewich and Kupferman, JJ.