| Pericon v Ruck |
| 2008 NY Slip Op 09053 [56 AD3d 635] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Jorge Pericon, Appellant, v Freddy Ruck et al., Defendants,and Anna Mullane, Respondent. Andrew Moulinos, NonpartyAppellant. |
—[*1] Herrick, Feinstein, LLP, New York, N.Y. (John Oleske and Kerry Jardine of counsel), forrespondent.
In an action to recover damages for fraud and notarial misconduct, the plaintiff and hisattorney, the nonparty Andrew Moulinos, appeal from an order of the Supreme Court, QueensCounty (Satterfield, J.), entered February 20, 2008, which granted the motion of the defendantAnna Mullane pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as assertedagainst her, and for an award of costs, including a reasonable attorney's fee, pursuant to 22NYCRR 130-1.1, and directed Andrew Moulinos to personally pay costs, including a reasonableattorney's fee, in the sum of $1,500, to the defendant Anna Mullane.
Ordered that the appeal by the plaintiff from so much of the order as directed the nonpartyAndrew Moulinos to personally pay, to the defendant Anna Mullane, the award of costs,including a reasonable attorney's fee in the sum of $1,500, is dismissed, without costs ordisbursements, as the plaintiff is not aggrieved by that portion of the order (see CPLR5511); and it is further,
Ordered that the appeal by the nonparty Andrew Moulinos from so much of the order asgranted that branch of the motion of the defendant Anna Mullane which was to dismiss theamended complaint insofar as asserted against her is dismissed, without costs or disbursements,as he is not aggrieved by that portion of the order (see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat [*2]branch of the motion of the defendant Anna Mullanewhich was to dismiss the fraud cause of action insofar as asserted against her, and substitutingtherefor a provision denying that branch of the motion, (2) by deleting the provision thereofgranting that branch of the motion which was for the imposition of costs, including a reasonableattorney's fee, and substituting therefor a provision denying that branch of the motion, and (3) bydeleting the provision thereof directing the nonparty Andrew Moulinos to personally pay, to thedefendant Anna Mullane, the award of costs, including a reasonable attorney's fee in the sum of$1,500; as so modified, the order is affirmed, without costs or disbursements.
While CPLR 3016 (b) requires that a cause of action sounding in fraud must be pleaded withfactual detail (see Barclay Arms v Barclay Arms Assoc., 74 NY2d 644, 646-647 [1989];Cohen v Houseconnect Realty Corp., 289 AD2d 277, 278 [2001]; Walden Terrace vBroadwall Mgt. Corp., 213 AD2d 630 [1995]), the specificity requirement of the statute isrelaxed where, as here, it is alleged that the particular circumstances of the claimed fraud areexclusively within the defendants' knowledge (see Lanzi v Brooks, 43 NY2d 778, 780[1977]; Caprer v Nussbaum, 36 AD3d 176, 203 [2006]; Kaufman v Cohen, 307AD2d 113, 121 [2003]; Bernstein v Kelso & Co., 231 AD2d 314, 321 [1997]). Contraryto the determination of the Supreme Court, under the circumstances of this case, the fraud causeof action was pleaded with specificity sufficient to comply with CPLR 3016 (b).
Similarly, the Supreme Court erred in directing dismissal of the fraud cause of action astime-barred. "A cause of action based upon fraud must be commenced within six years from thetime of the fraud or within two years from the time the fraud was discovered, or with reasonablediligence, could have been discovered, whichever is longer" (Oggioni v Oggioni, 46AD3d 646, 648 [2007]; see CPLR 213 [8]). The two-year period begins to run when thecircumstances reasonably would suggest to the plaintiff that he or she may have been defrauded,so as to trigger a duty to inquire on his or her part (see Saphir Intl., SA v UBS PaineWebberInc., 25 AD3d 315, 315-316 [2006]; Prestandrea v Stein, 262 AD2d 621, 622[1999]). Since it is unclear from the record when the plaintiff first should have been aware of thepossible fraud, that cause of action should not have been dismissed as time-barred (seeTrepuk v Frank, 44 NY2d 723, 725 [1978]; Mitschele v Schultz, 36 AD3d 249,255-256 [2006]).
The Supreme Court, however, properly directed dismissal of the cause of action to recoverdamages for notarial misconduct, since it was barred by the applicable six-year statute oflimitations (see Rastelli v Gassman, 231 AD2d 507, 508-509 [1996]).
Finally, in view of the foregoing, the Supreme Court erred in awarding the defendant AnnaMullane costs, including a reasonable attorney's fee, based on the alleged frivolous conduct of theplaintiff and his attorney pursuant to 22 NYCRR 130-1.1. Ritter, J.P., Florio, Miller and Carni,JJ., concur. [See 2008 NY Slip Op 30500(U).]