Lefkowitz v. Appelbaum

• Decision Date: 16 February 1999
• Citation: 258 A.D.2d 563,685 N.Y.S.2d 460
• Court: New York Supreme Court — Appellate Division
• Parties: ADRIENNE M. LEFKOWITZ, Appellant,<BR>v.<BR>CLAUDIA APPELBAUM et al., Respondents.

258 A.D.2d 563

685 N.Y.S.2d 460

ADRIENNE M. LEFKOWITZ, Appellant,

v.CLAUDIA APPELBAUM et al., Respondents.

Decided February 16, 1999.

O'Brien, J.P., Santucci, Joy and Goldstein, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

A cause of action based upon actual fraud must be commenced within six years of the commission of the fraud, or two years from the date the fraud could reasonably have been discovered, whichever is later (see, CPLR 213 [8]; 203 [g]; Baratta v ABF Real Estate Co., 215 AD2d 518). The burden of establishing that the fraud could not have been discovered before the two-year period prior to the commencement of the action rests on the plaintiff, who seeks the benefit of the exception (see, Endervelte v Slade, 214 AD2d 456). Here, the plaintiff commenced the action more than six years after the alleged fraud took place and more than two years after she could have discovered it.

With respect to the plaintiff's claims based on the alleged violations of Judiciary Law § 487, the trial court correctly dismissed those causes of action as barred by the three-year Statute of Limitations (see, Kuske v Gellert & Cutler, 247 AD2d 448; see also, Jorgensen v Silverman, 224 AD2d 665).

The plaintiff's remaining contentions are without merit.