| Colon v Banco Popular N. Am. |
| 2009 NY Slip Op 01345 [59 AD3d 300] |
| February 24, 2009 |
| Appellate Division, First Department |
| Francisco Colon et al., Appellants, v Banco Popular NorthAmerica, Respondent. |
—[*1] Jeffrey F. Cohen, Bronx, for respondent.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered November 20,2007, which, in an action to recover for emotional injuries sustained when plaintiff FranciscoColon was arrested, incarcerated and prosecuted allegedly due to defendant's negligentmisrepresentations, granted defendant's motion to dismiss the complaint, unanimously affirmed,without costs.
Even were we to find that plaintiffs sufficiently pleaded a cause of action for negligentmisrepresentation, we would find the claim untimely. Plaintiffs acknowledge that the point ofinjury occurred when he was arrested and incarcerated on December 1, 2003, and accordingly,the action, commenced in April 2007, is barred by the applicable three-year statute of limitations(CPLR 214). Contrary to plaintiffs' contention, the action is not governed by a six-yearlimitations period (CPLR 213), since they neither alleged fraud nor constructive fraud againstdefendant (see e.g. Fandy Corp. v Lung-Fong Chen, 262 AD2d 352 [1999]).Concur—Gonzalez, J.P., Sweeny, Renwick and Freedman, JJ.