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Colon v. Banco Popular North America

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 24, 2009

FRANCISCO COLON, ET AL., PLAINTIFFS-APPELLANTS,
v.
BANCO POPULAR NORTH AMERICA, DEFENDANT-RESPONDENT.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered November 20, 2007, which, in an action to recover for emotional injuries sustained when plaintiff Francisco Colon was arrested, incarcerated and prosecuted allegedly due to defendant's negligent misrepresentations, granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, J.P., Sweeny, Renwick, Freedman, JJ.

14484/07

Even were we to find that plaintiffs sufficiently pleaded a cause of action for negligent misrepresentation, we would find the claim untimely. Plaintiffs acknowledge that the point of injury occurred when he was arrested and incarcerated on December 1, 2003, and accordingly, the action, commenced in April 2007, is barred by the applicable three-year statute of limitations (CPLR 214). Contrary to plaintiffs' contention, the action is not governed by a six-year limitations period (CPLR 213), since they neither alleged fraud nor constructive fraud against defendant (see e.g. Fandy Corp. v Lung-Fong Chen, 262 AD2d 352 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090224

© 1992-2009 VersusLaw Inc.



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