| Faison v Lewis |
| 2013 NY Slip Op 03813 [106 AD3d 1047] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Dorothy M. Faison, Appellant, v Tonya Lewis etal., Respondents. |
—[*1] Liezl Irene Pagilinan, New York, N.Y., for respondent Bank of America, N.A. Akerman Senterfitt LLP, New York, N.Y. (Jordan M. Smith of counsel), forrespondent Mortgage Electronic Registration Systems, Inc.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from anorder of the Supreme Court, Kings County (Schmidt, J.), dated September 13, 2011,which granted the motion of the defendant Bank of America, N.A., pursuant to CPLR3211 (a) (5) to dismiss the complaint in its entirety as time-barred and denied, asacademic, her cross motion pursuant to CPLR 3211 (b) to dismiss the 15th affirmativedefense asserted in the joint answer of the defendants Bank of America, N.A., andMortgage Electronic Registration Systems, Inc.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofgranting that branch of the motion of the defendant Bank of America, N.A., which was todismiss the complaint insofar as asserted against the defendants Tonya Lewis, alsoknown as Tonya Taylor, also known as Tony Lewis Taylor, Dorothy Lewis, andMortgage Electronic Registration Systems, Inc., and substituting therefor a provisiondenying that branch of the motion, and (2) by deleting the provision thereof denying, asacademic, that branch of the plaintiff's cross motion which was to dismiss the 15thaffirmative defense insofar as asserted by the defendant Mortgage Electronic RegistrationSystems, Inc.; as so modified, the order is affirmed, without costs or disbursements.
Contrary to the plaintiff's contention, the statute of limitations for a fraud cause ofaction applies to a cause of action alleging forgery (see Shalik v Hewlett Assoc., L.P., 93 AD3d 777 [2012]; Vilsack v Meyer, 96 AD3d827 [2012]; JP MorganChase Bank, N.A. v Kalpakis, 91 AD3d 722 [2012]; Coombs v Jervier, 74 AD3d724 [2010]). The statute of limitations for a fraud-based cause of action requires thatthe action be commenced within six years after the allegedly fraudulent act or within twoyears after discovery, whichever is later (CPLR 213 [8]; 203 [g]; Sargiss v Magarelli, 12 NY3d527 [2009]; Vilsack v Meyer, 96 AD3d at 828). Here, the forgery allegedlyoccurred in 2000, and the plaintiff's own filing in an earlier action showed that she knewof the alleged fraud by 2003. Thus, she was required to commence an action by 2006 atthe latest, whereas this action was commenced in 2010. Accordingly, the Supreme Courtproperly granted that branch of the motion of the defendant Bank of America, N.A.(hereinafter the Bank), which was to dismiss the complaint insofar as asserted [*2]against it (see CPLR 213 [8]; 203 [g]; Sargiss v Magarelli, 12 NY3d527 [2009]; Vilsack v Meyer, 96 AD3d at 829), and properly denied, asacademic, that branch of the plaintiff's cross motion which was to dismiss the 15thaffirmative defense insofar as asserted by the Bank in the answer it filed jointly with thedefendant Mortgage Electronic Registration Systems, Inc. (hereinafter MERS).
The complaint, however, is still viable insofar as asserted against the defendantsTonya Lewis, also known as Tonya Taylor, also known as Tony Lewis Taylor, andDorothy Lewis, since they failed to raise the statute of limitations defense in their answeror in a pre-answer motion to dismiss (see Dougherty v City of Rye, 63 NY2d 989[1984]; Horst v Brown, 72AD3d 434 [2010]; Mann vRusk, 14 AD3d 909 [2005]). Also, since MERS did not join in the Bank'smotion to dismiss the complaint, the Supreme Court erred in granting that branch of theBank's motion which was to dismiss the complaint insofar as asserted against MERS(see Jaroff v Board of Assessment Review of Town of Ossining, 89 AD2d 617[1982]), and in denying, as academic, that branch of the plaintiff's cross motion whichwas to dismiss the 15th affirmative defense insofar as asserted by MERS.
The plaintiff's remaining contentions are without merit. Dillon, J.P., Balkin, Austinand Cohen, JJ., concur.