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Sally Dinerman v. Wor Radio Attention Jerry Crowley (General Manager

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 6, 2011

SALLY DINERMAN,
APPELLANT,
v.
WOR RADIO ATTENTION JERRY CROWLEY (GENERAL MANAGER),
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 8, 2009.

Dinerman v Wor Radio Attention

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 6, 2011

PRESENT: GOLIA, J.P., PESCE and RIOS, JJ .

The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action on November 24, 2008 seeking to recover $10,000 from defendant radio station, claiming that she was defrauded by a radio host, Sonny Bloch, who promoted investments in wireless cable and radio stations that turned out to be part of a fraudulent investment scheme. In 1994, plaintiff purchased stock in one of the recommended companies for the sum of $10,000 and asserted that she had only found out in November 2008 that the stock was worthless. Defendant moved to dismiss the complaint on the grounds that the complaint failed to state a cause of action and that the action was barred by the statute of limitations. By order entered June 8, 2009, the Civil Court granted defendant's motion dismissing the complaint, finding that the claim of fraud was barred by the statute of limitations and that, under CPLR 3016 (b), the complaint failed to set forth the elements of the claim in detail.

Upon a review of the record, we find that the Civil Court properly granted defendant's motion to dismiss the complaint, as the action sounding in fraud was barred by the statute of limitations. A cause of action based upon fraud must be commenced within six years from the commission of the wrong or within two years from the date the fraud was discovered, or with the exercise of reasonable diligence could have been discovered, whichever is longer (see CPLR 213 [8]; Pericon v Ruck, 56 AD3d 635, 636 [2008]; Oggioni v Oggioni, 46 AD3d 646, 648 [2007]; Prestandrea v Stein, 262 AD2d 621, 622 [1999]). The two-year period begins to run when the circumstances reasonably would suggest to a plaintiff that he or she may have been defrauded, so as to trigger a duty to inquire on his or her part (see Pericon v Ruck, 56 AD3d at 636; Prestandrea v Stein, 262 AD2d at 622). The test as to when a plaintiff should have discovered an incidence of fraud is an objective one (see Prestandrea v Stein, 262 AD2d at 622; Watts v Exxon Corp., 188 AD2d 74 [1993]). Where the circumstances are such as to suggest to a person of ordinary intelligence the likelihood of fraud, a duty of inquiry arises, and if a person fails to conduct an inquiry which would have established the existence of a fraud, and shuts his eyes to the facts which call for an investigation, knowledge of the fraud will be imputed to him (see Prestandrea v Stein, 262 AD2d at 622).

As set forth in defendant's moving papers, plaintiff failed to inquire about the value of her stock for 14 years, despite the cancellation of Bloch's radio show, extensive media coverage of his telemarketing investment scandal, the subsequent trial of Bloch, and further media coverage of the investment scandal upon Bloch's death in July 1998. Moreover, hundreds of other defrauded investors sued Bloch in 1994, underscoring that the circumstances were such as to suggest to a person of ordinary intelligence who had been a victim of the scandal the probability that he had been defrauded. As the Civil Court correctly found that plaintiff had not filed suit within two years of when she should have discovered the fraud (see Pericon v Ruck, 56 AD3d at 636; Prestandrea v Stein, 262 AD2d at 622), defendant's motion to dismiss the complaint was properly granted.

Golia, J.P., Pesce and Rios, JJ., concur.

Decision Date: April 06, 2011

20110406

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