D'Onofrio v. Mother of God With Eternal Life

• Citation: 60 Misc.3d 910,79 N.Y.S.3d 902
• Decision Date: 09 July 2018
• Docket Number: 52525/2018
• Parties: Maria J. D'ONOFRIO, Plaintiff, v. The MOTHER OF GOD WITH ETERNAL LIFE and Pasqualina Fontana, Defendants.
• Court: New York Supreme Court

60 Misc.3d 910

79 N.Y.S.3d 902

Maria J. D'ONOFRIO, Plaintiff,

v.The MOTHER OF GOD WITH ETERNAL LIFE and Pasqualina Fontana, Defendants.

52525/2018

Supreme Court, Westchester County, New York.

Decided on July 9, 2018

Bernard A. Edelstein, Esq., 315 Westchester Avenue, Port Chester, NY 10573, (914) 939–3606, For Plaintiff.

Michael W. Holland, Esq., 421 Willis Avenue, Williston Park, NY 11596, (516) 248–2655, For Defendants.

Terry J. Ruderman, J.

In this action, commenced on February 22, 2018, plaintiff seeks to rescind a number of transactions in which she deeded real property, or turned over valuable personal property, to defendants. Plaintiff asserts that defendant The Mother of God With Eternal Life is a New York corporation organized under section 402 of the Not-for-Profit Corporation Law on or about April 25, 2011, with defendant Pasqualina Fontana as its President, Treasurer and Director.

The fraudulent misrepresentation alleged in the complaint is as follows:

"Commencing on or about 2007 and continuously thereafter through 2017 defendant Fontana, claiming to be a faith healer, fraudulently stated and represented to plaintiff that if plaintiff did not do as defendant, Fontana, instructed her to do, i.e. turn over sums of cash, personal properties and real properties to defendant Fontana and/or defendant Mother of God with Eternal Live [sic] that plaintiff would suffer grave and fatal spiritual consequences including specifically that (a) ‘God does not forgive! Pay or you (will) die from torment of the souls that want (to) get the money ...’; (b) that ‘Enemy spirits would come’ if plaintiff did comply with defendant's directives; and (c) that I must ‘...give up the property for God, Heaven is on Earth and He wanted a place to stay on earth, and if I did not grant His wishes, I would be punished severely.’ "

Plaintiff asserts that the foregoing false statements were made by defendant Fontana with the intent of defrauding plaintiff and inducing plaintiff to transfer her real properties, sums of money and personal property to defendants.

The duress and undue influence claims are supported in the complaint by allegations in the complaint that:

"(a) Defendant forced plaintiff to reside in small and unsuitable rooms or apartments in the properties aforesaid or in defendant Fontana's property in Yonkers, NY. Defendant was forced to move between these properties over twenty-five occasions from 2007 through 2017. Plaintiff was forced to sleep in a dining room without a door for privacy.

"(b) Defendant Fontana isolated plaintiff from plaintiff's family leaving plaintiff with little or no contact with persons other than defendant Fontana or her daughters.

"(c) Defendant Fontana was verbally, emotionally and physical abusive towards plaintiff on numerous occasions calling plaintiff a ‘dog’ or ‘puppy’ and telling her to ‘jump off a bridge.’

"(d) On or about June 27, 2015 defendant Fontana had thrown garden scissors at [p]laintiff's fee[t] two times.

"(e) On or about April 18, 2017 at 33 Midland Ave., White Plains, NY[,] defendant Fontana started to choke the [p]laintiff.

"(f) Defendant Fontana threw out the personal property of the [p]laintiff including family photographs and objects [p]laintiff had received from her mother."

Additional allegations in support of her complaint are provided by plaintiff in an affidavit submitted in opposition to defendants' dismissal motion. They include,

* "In or about 2007 I had been in an abusive marriage with my former husband for many years and I was deeply depressed and vulnerable."

* "I had known Defendant Pasqualina Fontana ("Fontana") through church. Fontana represented to me that she was a faith healer."

* "I am Catholic and I am deeply religious and did not believe in divorce. Nevertheless, Fontana repeatedly told me that she had received ‘messages’ that my only living child, my son, would die if I remained close to him and that my husband would kill me."

* "Fontana repeatedly urged me to seek a divorce, leave my family and move into a basement apartment in her home in 28 College Place, Yonkers, NY at a rental of $1,200 per month and I did so. She repeatedly told me that my husband would find me and kill me if I would have resided with my mother on Long Island."

* "Fontana took some of my jewelry and watches from me claiming that they would affect my heart beat and that they were full of bad spirits which would attack me. In or about 2008 Fontana had her two friends drive me to New York City in order to sell some other of my jewelry and the $10,000 cash proceeds and the remaining jewelry was taken from me by Fontana which she later admitted to me.

* "Fontana refused to allow me to drink water claiming that it was full of evil spirits. I existed by drinking Ensure, which she made me drink, and eventually I was hospitalized in 2010 in a diabetic coma."

* "She coerced me to name her as the beneficiary on an ‘in trust for’ account at HSBC bank with approximately $100,0000 as this was the safest way to protect the money from evil spirits."

* "I was totally under Fontana's control and evil spell in my weakened emotional, psychological and physical state and I was afraid of her and felt that I had to do whatever she demanded or else I would suffer evil spiritual consequences."

* "Fontana kept me under her evil spell and constantly told me that terrible evil things would happen to me should I not abide by her directions and that I should not speak with anyone."

The transfers of real property that plaintiff now seeks to rescind are: (1) a deed executed by plaintiff in favor of defendant Mother of God with Eternal Life on December 28, 2011 to real property located at 203 Gotham Avenue, Elmont, New York; (2) a deed executed by plaintiff in favor of defendant Mother of God with Eternal Life on January 12, 2012 to real property located at 227 Franklin Street, Elmont, New York; (3) deeds executed on or about January 12, 2012 by plaintiff in favor of defendant Mother of God with Eternal Life for unimproved real properties designated as Lots 11 & 12 in Block No.358 on the map of Inverness Highlands West, Subdivision, also known as 04025 & 04011 S. Alpine, Inverness, Florida; and (4) a deed executed by plaintiff on or about January 6, 2014 to transfer to Mother of God with Eternal Life real property located at 33 Midland Avenue, White Plains, New York.

Defendants now move to dismiss the complaint, arguing that the causes of action based on fraud and undue influence were not commenced within six years of their accrual, and are therefore barred by the statute of limitations ( CPLR 213[8] ). Defendants further contend that the complaint fails to plead all of the elements of fraud, in particular, a misrepresentation of a material existing fact or justifiable reliance. Additionally, defendants assert that the allegations fail to plead sufficient facts to establish a claim for undue influence. Plaintiff opposes.

Analysis

CPLR 3211(a)(5) —Statute of Limitations

Pursuant to CPLR 213(8), a cause of action for fraud must be brought within "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" ( Monteleone v. Monteleone , 162 A.D.3d 761, 78 N.Y.S.3d 247, 2018 NY Slip Op. 04317, 2018 WL 2945685 [2d Dept. June 13, 2018] ). "A cause of action based upon fraud accrues, for statute of limitations purposes, at the time the plaintiff possesses knowledge of facts from which the fraud could have been discovered with reasonable diligence" ( Coleman v. Wells Fargo & Co. , 125 A.D.3d 716, 4 N.Y.S.3d 93 [2d Dept. 2015] ). Causes of action alleging undue influence or duress are similarly covered by the six-year statute of limitations (see Pearl–Wick Corp. v. Chase Manhattan Bank, N. A. , 125 A.D.2d 249, 251, 509 N.Y.S.2d 537 [1st Dept. 1986], citing CPLR 213 [1 ] ).

Plaintiff concedes that almost all of the real property transfers for which she seeks rescission occurred more than six years before this action was commenced; only the deed executed by plaintiff on or about January 6, 2014 to transfer 33 Midland Avenue in White Plains, New York was within the statute. However, plaintiff takes the position that the statute of limitations must be tolled, due to her claimed physical, emotional and psychological illnesses which affected her judgment and understanding to protect her affairs for a period of time beginning before the transfers and continuing up to the commencement of this action.

CPLR 208 provides for the tolling of the statute of limitations if the plaintiff "is under a disability because of infancy or insanity at the time the cause of action accrues." "[T]he statute itself provides no definition of the term ‘insanity’ " ( McCarthy v. Volkswagen of America, Inc. , 55 N.Y.2d 543, 547, 450 N.Y.S.2d 457, 435 N.E.2d 1072 [1982] ). "[T]he legislative history of CPLR 208 indicates that the Legislature intended the toll for insanity to be narrowly interpreted" ( id. , citing Fifth Rep of NY Adv Comm, NY Legis Doc, 1961, No. 15, p 43). In McCarthy , the Court declined to employ the insanity toll where the plaintiff claimed that the cause of his belated commencement of his action against the manufacturer of his vehicle, which burst into flames when it struck a utility pole, was "post traumatic neurosis," manifesting itself in an inability to confront the memory of his accident.

Since the McCarthy decision, a number of psychological conditions have been allowed to serve as a basis for the insanity toll. Uncontradicted testimony of a psychiatrist to the effect that the plaintiff suffered from paranoid schizophrenia and borderline personality disorder, with symptoms of hallucinations and impulsive suicidal behavior, necessitating multiple hospitalizations, medication, and psychotherapy, was found to justify the application of the insanity toll (see Cairl v. County of Westchester , 150 A.D.2d 749, 542 N.Y.S.2d 199 [2d Dept. 1989] )....