KENDRICK, BUFFALO, FOR PLAINTIFFS-APPELLANTS.
LITCHFIELD CAVO, LLP, NEW YORK CITY (MICHAEL K. DVORKIN OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS ING RELIASTAR LIFE
INSURANCE COMPANY, AND ING U.S. INC., ALSO KNOWN AS VOGA
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER,
from an amended order of the Supreme Court, Erie County
(Shirley Troutman, J.), entered January 20, 2015. The amended
order, among other things, granted the motion to dismiss of
defendant Tina McCary Moore, individually and as executrix of
the estate of Melvin E. Moore, deceased, and dismissed the
complaint against all defendants.
hereby ORDERED that the amended order so appealed from is
unanimously modified on the law by reinstating the complaint
against defendant ReliaStar Life Insurance Company,
incorrectly sued herein as ING ReliaStar Life Insurance
Company, and defendant VOYA Financial, Inc., incorrectly sued
herein as ING U.S. Inc., also known as Voga Financial, Inc.,
and as modified the amended order is affirmed without costs.
In appeal No. 1, plaintiffs appeal from an amended order
that, among other things, granted the motion to dismiss of
defendant Tina McCary Moore, individually and as executrix of
the estate of Melvin E. Moore (decedent), and dismissed the
complaint against all defendants. In appeal No. 2, plaintiffs
appeal from an amended order denying their motion for leave
to renew and/or reargue their opposition to Moore's
motion to dismiss.
preliminary matter we note that, insofar as the amended order
in appeal No. 2 denied the motion for leave to reargue, it is
not appealable, and we therefore dismiss the appeal to that
extent on that ground (see Gaiter v City of Buffalo Bd.
of Educ., 142 A.D.3d 1349, 1350; Indus PVR LLC v
MAA-Sharda, Inc., 140 A.D.3d 1666, 1667, lv
dismissed in part and denied in part 28 N.Y.3d 1059).
With respect to that part of plaintiffs' motion seeking
leave to renew, we affirm the amended order in appeal No. 2.
A motion for leave to renew "shall be based upon new
facts not offered on the prior motion that would change the
prior determination" and "shall contain reasonable
justification for the failure to present such facts on the
prior motion" (CPLR 2221 [e] , ; see Doe v
North Tonawanda Cent. Sch. Dist., 91 A.D.3d 1283, 1284).
Here, Supreme Court properly determined that plaintiffs
" failed to offer a valid excuse for failing to submit
the new material' " in opposition to Moore's
original motion to dismiss (Jones v City of Buffalo Sch.
Dist., 94 A.D.3d 1479, 1479; see Linden v
Moskowitz, 294 A.D.2d 114, 116, lv denied 99
respect to appeal No. 1, we conclude that the court properly
dismissed the complaint as against Moore. It is well
established that "a fraud-based action must be commenced
within six years of the fraud or within two years from the
time the plaintiff[s] discovered the fraud or could with
reasonable diligence have discovered it' "
(Sargiss v Magarelli, 12 N.Y.3d 527, 532, quoting
CPLR 213 ; see also CPLR 203 [g]). In their
complaint, plaintiffs alleged that, during his life,
decedent, plaintiffs' uncle, had named them as
beneficiaries on a life insurance policy issued by defendant
ReliaStar Life Insurance Company (RLIC), incorrectly sued
herein as ING ReliaStar Life Insurance Company. Plaintiffs
further alleged that "through fraud, undue influence,
and/or coercion shortly before [decedent] passed away on
April 21, 2008, while he was physically and mentally
incapacitated as a result of terminal cancer[, ]" Moore
"procured" a change in the policy, i.e., she became
the beneficiary thereof, replacing plaintiffs. Thus,
according to plaintiffs' complaint, any alleged fraud by
Moore occurred prior to decedent's death on April 21,
2008. Plaintiffs, however, did not commence the action until
six years later, on April 21, 2014, i.e., more than six years
from the date of the alleged fraud. Plaintiffs were therefore
required to show that their fraud cause of action was timely
pursuant to the two-year discovery exception (see Brooks
v AXA Advisors, LLC [appeal No. 2], 104 A.D.3d 1178,
1180, lv denied 21 N.Y.3d 858; Vilsack v
Meyer, 96 A.D.3d 827, 828). Contrary to plaintiffs'
contention, the "record supports the court's
determination that plaintiffs possessed knowledge of facts
from which they reasonably could have discovered the alleged
fraud soon after it occurred, and in any event more than two
years prior to the commencement of the action"
(Brooks, 104 A.D.3d at 1180; see Giarratano v
Silver, 46 A.D.3d 1053, 1056; Prestandrea v
Stein, 262 A.D.2d 621, 622-623).
nevertheless contend that, because they rejected Moore's
answer and treated it as a nullity (see CPLR 3022),
they were entitled to a default judgment against Moore and
Moore's motion to dismiss pursuant to CPLR 3211 (a) (5)
was precluded by CPLR 3211 (e). We reject that contention.
Moore timely served an answer and counterclaim in which she
raised the affirmative defense that plaintiffs did not
commence their action within the applicable statute of
limitations. Although Moore's answer did not contain the
requisite verification (see CPLR 3020 [b] ),
plaintiffs in this case "proceeded on the theory that
[they] had to prove [their] claim[s] as if [they] stood
controverted. [They] did not seek to proceed as if upon a
default" (Matter of McDonald [Luppino], 100
A.D.3d 1349, 1350 [internal quotation marks omitted]).
Furthermore, plaintiffs waived any objection to the lack of
verification by waiting nearly two months to reject the
answer (see Rozz v Law Offs. of Saul Kobrick, P.C.,
134 A.D.3d 920, 921-922; Cherubin Antiques, Inc. v
Matiash, 106 A.D.3d 861, 862; McDonald, 100
A.D.3d at 1350). We therefore conclude that plaintiffs failed
to act with "due diligence" as required by CPLR
agree with plaintiffs, however, that the court erred in sua
sponte dismissing the complaint against RLIC and its parent
company, defendant VOYA Financial, Inc. (VOYA), incorrectly
sued herein as ING U.S. Inc., also known as Voga Financial,
Inc. We therefore modify the amended order accordingly.
"[I]n the absence of a CPLR 3211 (a) motion by [RLIC and
VOYA], the court was without authority to search the record
and dismiss any claims against [them]" (Torrance
Constr., Inc. v Jaques, 127 ...