| Gorelick v Vorhand |
| 2011 NY Slip Op 03207 [83 AD3d 893] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Bracha Gorelick, Appellant, v Milan Vorhand et al.,Defendants, and Harry Vorhand, Respondent. |
—[*1] Silber Law Firm, LLC, New York, N.Y. (Meyer Y. Silber of counsel), forrespondent.
In an action, inter alia, for a judgment declaring the plaintiff's interest in a certain partnershipand to compel partnership accountings and a distribution of partnership assets, the plaintiffappeals, as limited by her brief, from (1) so much of an order of the Supreme Court, RocklandCounty (Nelson, J.), entered September 11, 2009, as granted that branch of the motion of thedefendant Harry Vorhand which was pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as asserted against the defendants Milan Vorhand, Harry Vorhand, and Thomas Vorhandas time-barred, and (2) so much of an order of the same court dated January 29, 2010, as, uponreargument, in effect, adhered to the prior determination.
Ordered that the appeal from the order entered September 11, 2009, is dismissed, as thatorder was superseded by the order dated January 29, 2010, made upon reargument; and it isfurther,
Ordered that the order dated January 29, 2010, is reversed insofar as appealed from, on thelaw, and upon reargument, the determination in the order entered September 11, 2009, grantingthat branch of the motion of the defendant Harry Vorhand which was pursuant to CPLR 3211 (a)(5) to dismiss the complaint insofar as asserted against the defendants Milan Vorhand, HarryVorhand, and Thomas Vorhand as time-barred is vacated and, thereupon, that branch of themotion of the defendant Harry Vorhand is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
"[A] fraud-based action must be commenced within six years of the fraud or within two yearsfrom the time the plaintiff discovered the fraud or 'could with reasonable diligence havediscovered it' " (Sargiss v Magarelli,12 NY3d 527, 532 [2009], quoting CPLR 213 [8]; see 203 [g]; Coombs v Jervier, 74 AD3d 724,724 [2010]). "The test as to when a plaintiff should have discovered an alleged fraud is anobjective one" (Prestandrea v Stein, 262 AD2d 621, 622 [1999]; see 2 NY PJI2d3:20, at 192 [2011]). Thus "plaintiffs will be held to have discovered the fraud when it isestablished that they were possessed of knowledge of facts from which [the fraud] could bereasonably inferred" (Erbe v Lincoln Rochester Trust Co., 3 NY2d 321, 326 [1957];see Sargiss v Magarelli, 12 NY3d at 532; [*2]Higginsv Crouse, 147 NY 411, 416 [1895]; Stride Rite Children's Group v Siegel, 269 AD2d875, 876 [2000]; Watts v Exxon Corp., 188 AD2d 74, 76 [1993]; Azoy v Fowler,57 AD2d 541, 541-542 [1977]).
"Ordinarily such an inquiry presents a mixed question of law and fact" (Erbe v LincolnRochester Trust Co., 3 NY2d at 326; see K&E Trading & Shipping v Radmar TradingCorp., 174 AD2d 346 [1991]; Azoy v Fowler, 57 AD2d 541, 541-542 [1977]). As ageneral matter, "knowledge of the fraudulent act is required and mere suspicion will notconstitute a sufficient substitute" (Erbe v Lincoln Rochester Trust Co., 3 NY2d at 326;see Sargiss v Magarelli, 12 NY3d at 532).
Where, as here, "it does not conclusively appear that a plaintiff had knowledge of facts fromwhich the fraud could reasonably be inferred, a complaint should not be dismissed on motion andthe question should be left to the trier of the facts" (Trepuk v Frank, 44 NY2d 723, 725[1978]; see Sargiss v Magarelli, 12 NY3d at 532; see Pericon v Ruck, 56 AD3d 635, 636-637 [2008]; Oggioni v Oggioni, 46 AD3d 646,648-649 [2007]; Saphir Intl., SA v UBSPaineWebber Inc., 25 AD3d 315, 316 [2006]). Accordingly, the Supreme Court erredwhen it, upon reargument, in effect, adhered to so much of the determination in the order enteredSeptember 11, 2009, as granted that branch of the motion of the defendant Harry Vorhand whichwas pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against thedefendants Milan Vorhand, Harry Vorhand, and Thomas Vorhand as time-barred. Mastro, J.P.,Skelos, Balkin and Roman, JJ., concur.