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Marasa v. Andrews

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 5, 2010

SALVATORE MARASA, APPELLANT-RESPONDENT,
v.
JOHN ANDREWS, ET AL., DEFENDANTS-RESPONDENTS, DONALD FIORE, INDIVIDUALLY AND AS TRUSTEE FOR THE SUSAM M. FIORE REVOCABLE TRUST, F/K/A SUSAN M. FIORE IRREVOCABLE TRUST, ET AL., RESPONDENTS-APPELLANTS.

In an action, inter alia, to recover damages for fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated November 24, 2008, as granted that branch of the motion of the defendants John Andrews and Kenneth J. Lauri and that branch of the separate motion of the defendants Donald Fiore, individually and as trustee of the Susan M. Fiore Revocable Trust, and Susan M. Fiore which were for summary judgment dismissing the complaint insofar as asserted against them as time-barred, and the defendants Donald Fiore, individually and as trustee of the Susan M. Fiore Revocable Trust, and Susan M. Fiore, cross-appeals from the same order.

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.

STEVEN W. FISHER, J. P., JOSEPH COVELLO, FRED T. SANTUCCI, RUTH C. BALKIN, JJ.

(Index No. 13004/07)

DECISION & ORDER

ORDERED that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8[e]); and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.

An action to recover damages for fraud must be commenced within "the greater of six years from the date the cause of action accrued or two years from the time the plaintiff discovered the fraud, or could with reasonable diligence have discovered it" (CPLR 213[8]; see CPLR 203[g]). For the purposes of the discovery rule, a plaintiff's cause of action accrues "at the time the plaintiff possesses knowledge of facts from which the fraud could have been discovered with reasonable diligence'" (Oggioni v Oggioni, 46 AD3d 646, 648, quoting Town of Poughkeepsie v Espie, 41 AD3d 701, 705).

Here, the fraud allegedly occurred in June 1999, and the plaintiff possessed knowledge of facts from which he could have discovered it by November 2004. Nevertheless, he did not commence this action until May 2007. Consequently, the Supreme Court properly granted those branches of the defendants' respective motions which were for summary judgment dismissing the complaint as time-barred.

In light of the foregoing, the defendants' remaining contentions are academic.

FISHER, J. P., COVELLO, SANTUCCI and BALKIN, JJ., concur.

20100105

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