| Von Blomberg v Garis |
| 2007 NY Slip Op 08215 [44 AD3d 1033] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Julie Von Blomberg, Appellant, v Richard Garis,Respondent. |
—[*1] Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Nica B. Strunk of counsel), forrespondent.
In an action for reformation of a deed, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (Emerson, J.), dated June 1, 2006, which granted the defendant's motionfor summary judgment dismissing the complaint as time-barred.
Ordered that the order is affirmed, with costs.
On April 12, 1996 the defendant executed a deed conveying his individual ownership interestin certain real property (hereinafter the property) to both himself and Gayle Willson (hereinafterthe decedent) as "joint tenants with right of survivorship." This deed was recorded in the Officeof the Suffolk County Clerk on April 30, 1996. The decedent died on August 14, 2004. Her lastwill and testament, executed on June 19, 2001, contained the following provision: "I currentlyown [the property] as joint tenants with rights of survivorship. If [the defendant] should notsurvive me, I direct my Executor to add said real property to my residuary in paragraph Fourth ofthis will."
On or about May 4, 2005 the plaintiff, the decedent's daughter and a beneficiary under thedecedent's will, commenced this action seeking to reform the deed to the property. The plaintiffalleged that the defendant fraudulently executed the deed in violation of his alleged agreementwith the decedent that they would hold title to the property as tenants in common with no right ofsurvivorship.[*2]
Contrary to the plaintiff's contention, the Supreme Courtproperly granted the defendant's motion for summary judgment dismissing the complaint astime-barred. A cause of action based upon actual fraud must be commenced within six years ofthe commission of the fraud, or two years from the date the fraud could reasonably have beendiscovered, whichever is longer (see CPLR 213 [8]; 203 [g]; Siler v Lutheran SocialServs. of Metro. N.Y., 10 AD3d 646, 648 [2004]; Lefkowitz v Appelbaum, 258AD2d 563 [1999]; Baratta v ABF Real Estate Co., 215 AD2d 518, 519 [1995]). A claimfor reformation of a deed predicated upon fraud is governed by the same statute of limitations asan action sounding in fraud (see Kurtish v Goldberg, 253 AD2d 740, 741 [1998]). Theburden of establishing that the fraud could not have been discovered prior to the two-year periodbefore the commencement of the action rests on the plaintiff who seeks the benefit of theexception (see Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d at 648;Lefkowitz v Appelbaum, 258 AD2d 563 [1999]).
Here, the action was commenced more than six years after the defendant's alleged fraud.Moreover, since this action was not commenced within two years of when the fraud couldreasonably have been discovered, the action is time-barred (see Siler v Lutheran Social Servs.of Metro. N.Y., 10 AD3d at 648; Prestandrea v Stein, 262 AD2d 621, 622 [1999];Lefkowitz v Appelbaum, 258 AD2d 563 [1999]; Baratta v ABF Real Estate Co.,215 AD2d at 519).
The plaintiff's remaining contentions are unpreserved for appellate review and, in any event,are without merit or have been rendered academic in light of our determination. Miller, J.P.,Ritter, Covello and McCarthy, JJ., concur.