Opinion
2005-1659 RI C.
Decided October 27, 2006.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered April 4, 2005. The order granted a motion by defendant The Greenpoint Savings Bank and a cross motion by defendant Chicago Title Co. to dismiss the action.
Order affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In this small claims action, plaintiffs allege that, in April 1991, a check for $37,681.58 was drawn by defendant The Greenpoint Savings Bank (Greenpoint) and made payable to Ticor Title Co., the predecessor of defendant Chicago Title Co., as part of a mortgage brokered by one Mark Fries. Plaintiffs further allege that payment was stopped on the check, and two replacement checks were issued. One of the checks, provided to plaintiff Paul Scianna's driver for deposit to the "check cashing" establishment that handled Scianna's payroll account, was $3,500 short, that amount having been allegedly fraudulently diverted, by way of the second check, to Mark Fries. Plaintiffs claim that defendants were aware of and participated in the wrongdoing and that they breached a fiduciary duty to plaintiffs by not disclosing it to them.
Defendants moved to dismiss, arguing that the action sounds in fraud and was not commenced within the applicable limitations period. Under CPLR 213 (8), a cause of action based on fraud must be brought within six years from the time of the fraud or within two years from the time the fraud was or, with reasonable diligence, could have been discovered, whichever is longer. In opposition to the motion, plaintiff Paul Scianna averred, inter alia, that he was unaware of the fraud until 2003, when Greenpoint's counsel provided him with copies of bank documents. The court below concluded that plaintiffs "did not act with reasonable diligence as required by CPLR 213 (8)" and dismissed the action as time barred.
In our view, substantial justice was done between the parties according to the rules and principles of substantive law (CCA 1807). A plaintiff may not shut his or her eyes to facts that call for further investigation ( K E Trading Shipping v Radmar Trading Corp., 174 AD2d 346). Defendants established that plaintiffs should have known of the diversion of the funds shortly after its occurrence. Although plaintiffs were aware of the amount of monies to be deposited, they offered no explanation as to why the discrepancy was not discovered earlier ( see Shannon v Gordon, 249 AD2d 291).
Pesce, P.J., Golia and Rios, JJ., concur.