McCabe v. Gelfand

• Decision Date: 04 June 1968
• Citation: 57 Misc.2d 12,291 N.Y.S.2d 261
• Parties: Bernard McCABE, Plaintiff, v. Sam GELFAND, also known as Samuel Gelfand and Leonora Gelfand, Defendants.
• Court: New York Supreme Court

Page 261

291 N.Y.S.2d 261

57 Misc.2d 12

Bernard McCABE, Plaintiff, v. Sam GELFAND, also known as Samuel Gelfand and Leonora Gelfand, Defendants.

Supreme Court, Special Term, Kings County, Part I.

June 4, 1968.

[57 Misc.2d 13] Jerome Edelman, Brooklyn, for plaintiff.

Kommel, Rogers, Lorber & Shenkman, New York City, for defendants.

MEMORANDUM

CARMINE A. VENTIERA, Justice.

Motion by the plaintiff for an order dismissing the separate, distinct and complete defenses contained in paragraphs '7' through '9' inclusive of the second amended answer upon the ground that a defense is not stated therein. More specifically, the defendants have interposed the statute of limitations as a defense to the allegations contained in the second amended complaint.

The facts as alleged, in brief, are as follows:

In an action commenced on March 25, 1958, the plaintiff, judgment-creditor, sued the defendant, judgment-debtor, Sam Gelfand, among others, for personal injuries, claiming substantial damages. At that time, Sam Gelfand was the fee owner and in possession of certain premises in Queens County, New York. On June 25, 1960, while the lawsuit was still pending, Sam Gelfand deeded the property to his wife and co-defendant herein, allegedly without fair consideration, contemporaneously divesting himself of all his other assets, thereby rendering himself insolvent. Plaintiff alleges the defendant-wife Leonora Gelfand knowingly participated therein and helped to effectuate the fraud. In April 1965 plaintiff recovered a substantial judgment and a balance of approximately $126,000 remains unpaid. On January 3, 1967 plaintiff commenced the present action to set aside the transfer. Plaintiff alleges in his complaint that he did not discover or ascertain the facts constituting the alleged fraudulent transfer until about September 29, 1966 upon a title search.

Plaintiff contends that CPLR section 213(9) and the short statute of limitations imposed by section 203(f) of the CPLR apply but the savings provisions of Rule 218(b) are applicable to the 1960 (or pre-CPLR) transfer.

Rule 218(b) states:

'Cause of action accrued and not barred at effective date. Where a cause of action accrued before, and is not barred when this article becomes effective, the time within which an action must be commenced shall be the time which would have been applicable apart from the provisions of this article, or the time which would have been applicable if the provisions of this article had been in effect when the cause of action accrued, whichever is longer.'

Specifically, plaintiff contends that he has six years from the discovery of the alleged fraud in September 1966 in which to bring his action (Civil Practice Act, § 48(5)).

The defendants controvert the plaintiff as to the actual date upon which he discovered the alleged fraud, contending that in a prior complaint, plaintiff alleged that the discovery was made in or about January 1964 in the course of testimony given by Sam Gelfand in supplementary proceedings.

Defendants contend that plaintiff has two years from the discovery of the alleged fraud in January 1964 and/or six years from June 1960 when the fraud is alleged to have been committed, and since this action was not started until January 1967, the statute of limitations is a good defense. Defendants cite CPLR 206 former (c) which read as follows:

'In an action based upon fraud, the time within which the action must be commenced shall be computed from the time the plaintiff or the person under whom he claims discovered the fraud, or could with reasonable diligence have discovered it.'

In commenting upon this section, Prof. McLaughlin, in the Cumulative Annual Pocket Part of Book 7B of McKinney's Cons.Laws, made the following statement:

'The discovery provision of C.P.A. § 48(5) has been removed from the statute governing actions at law for fraud, and has been made a separate provision in CPLR 206(c).'

Section 203(f) CPLR, 1967 Cumulative Annual Pocket Part of McKinney's Cons.Laws, provides as follows:

'(f) Time computed from actual or imputed discovery of facts. Except as provided in article 2 of the uniform commercial code, where the time within which an action must be commenced is computed from the time when facts were discovered or from the time when facts could with reasonable diligence have been discovered, or from either of such times, the action must be commenced within two years after such actual or imputed discovery or within the period otherwise provided, computed from the time the cause of action accrued, whichever is longer. * * *'

Prof. McLaughlin, in commenting upon CPLR section 203(f) said at page 83 of McKinney's Consolidated...