| Sargiss v Magarelli |
| 2008 NY Slip Op 04069 [50 AD3d 1117] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Frieda Sargiss, Appellant, v Marlene Magarelli et al.,Respondents, et al., Defendants. |
—[*1] Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (William H. Mulligan, Jr., of counsel),for respondent Marlene Magarelli. Joseph S. Garafola, White Plains, N.Y. (Walter L. Rich of counsel), for respondents JuliusSargiss, Alice Sargiss, and Panrad Automotive Industries, Inc.
In an action to recover damages for fraud, the plaintiff appeals from an order of the SupremeCourt, Westchester County (Lefkowtiz, J.), dated April 26, 2007, which granted the motion ofthe defendant Marlene Magarelli and the separate motion of the defendants Julius Sargiss, AliceSargiss, and Panrad Automotive Industries, Inc., to dismiss the complaint, inter alia, pursuant toCPLR 3016 (b) for failure to plead fraud with particularity, and pursuant to CPLR 3211 (a) (5) astime-barred.
Ordered that the order is affirmed, with one bill of costs payable to the respondents appearingseparately and filing separate briefs.
Contrary to the plaintiff's contention, the Supreme Court properly dismissed the complaint astime-barred (see Von Blomberg v Garis,44 AD3d 1033 [2007]). A cause of action based upon fraud must be commenced withinsix years of the commission of the fraud, or two years from the date the fraud could reasonablyhave been discovered, the expiration of whichever is later (see CPLR 213 [8]; 203 [g])."The burden of establishing that the fraud could not have been discovered prior to the two-yearperiod before the commencement of the action rests on the plaintiff who seeks the benefit of theexception" (Von Blomberg v Garis, 44 AD3d at 1034; see Siler v Lutheran Social Servs. of Metro.N.Y., 10 AD3d 646, 648 [2004]). Here, the action was commenced more than six yearsafter the [*2]alleged fraud, and the plaintiff failed to satisfy herburden of establishing that the fraud could not have been discovered prior to the two-year periodbefore the commencement of the action.
We note that the cause of action to recover damages for fraud was not pleaded with thespecificity required under CPLR 3016 (b). The complaint contained only conclusory allegationsof fraud, without any facts to support a finding that any fraudulent act was committed (see Dumas v Fiorito, 13 AD3d 332[2004]; Thaler & Gertler v Weitzman, 282 AD2d 522 [2001]; Penna v Caratozzolo,131 AD2d 738 [1987]). Accordingly, the Supreme Court also properly granted the motionsto dismiss the complaint on the ground that the cause of action alleging fraud was not pleadedwith sufficient particularity. Rivera, J.P., Skelos, Santucci and Belen, JJ., concur.