Garber v. Ravitch
| Decision Date | 01 October 1992 |
| Citation | 588 N.Y.S.2d 163,186 A.D.2d 361 |
| Parties | Ida GARBER, Plaintiff-Appellant, v. June RAVITCH, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before MILONAS, J.P., and ROSENBERGER, ELLERIN and RUBIN, JJ.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered June 14, 1991, which granted defendant's motion for summary judgment dismissing plaintiff's complaint as time-barred, unanimously affirmed, without costs.
Plaintiff's argument that her cause of action is one for fraud, not replevin, and is therefore governed by the six-year limitation period set forth in CPLR 213(8), not the three-year period set forth in CPLR 214(3), is without merit. Where an allegation of fraud is not essential to the cause of action pleaded, its only purpose being to avoid an anticipated defense of the Statute of Limitations (it should be noted that plaintiff originally brought an action for conversion, which was, with her consent, dismissed without prejudice after defendant served an answer interposing the Statute of Limitations), courts "look for the reality, and the essence of the action and not its mere name." (Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902). Here, the alleged fraud being merely the means of accomplishing the conversion of plaintiff's property, it adds nothing to a cause of action sounding in replevin.
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