| Williams-Guillaume v Bank of Am., N.A. |
| 2015 NY Slip Op 06333 [130 AD3d 1016] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Janett Williams-Guillaume, Appellant, v Bankof America, N.A., Respondent. |
Edward Weissman, New York, N.Y. (Janice Marcantonio of counsel), forappellant.
Bryan Cave LLP, New York, N.Y. (Suzanne M. Berger and Heather A. Rogers ofcounsel), for respondent.
In an action to recover damages for fraud, unjust enrichment, and a violation ofGeneral Business Law § 349, the plaintiff appeals from an order of theSupreme Court, Queens County (Elliot, J), entered April 3, 2014, which granted thedefendant's motion pursuant to CPLR 3211 (a) to dismiss the complaint.
Ordered that the order is affirmed, with costs.
In February 2007, the plaintiff obtained two mortgage loans from Country HomeLoans, Inc (hereinafter Country Home). According to the complaint, in obtaining theloans, the plaintiff provided "detailed financial information" to Country Home. InJanuary 2008, the plaintiff was informed that the defendant had acquired Country Homeand that it became the mortgagee for both mortgages. The plaintiff alleged that she madeall monthly mortgage payments from 2007 through 2013.
In an affidavit, the plaintiff stated that, in 2013, she applied to the defendant torefinance the loans. Upon denying the plaintiff's application, the defendant allegedlyinformed the plaintiff that her income was not sufficient, and that the documents shesubmitted in support of her application to refinance the loans showed that she wasearning less than she did when she first applied for the loans in 2007. The plaintifffurther stated that in October 2013, the defendant provided her with documentation,including a copy of a loan application from 2007. The plaintiff alleged that the loanapplication from 2007 falsified the name of an employer, inflated the amount of herincome, and contained a forgery of her signature.
The plaintiff commenced this action in December 2013, alleging fraud, unjustenrichment, and a violation of General Business Law § 349. Thereafter, thedefendant moved, inter alia, pursuant to CPLR 3211 (a) (5) to dismiss the complaint onthe ground that it was time-barred. The Supreme Court granted the motion, and theplaintiff appeals.
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute of[*2]limitations grounds, the moving defendant mustestablish, prima facie, that the time in which to commence the action has expired. Theburden then shifts to the plaintiff to raise an issue of fact as to whether the statute oflimitations is tolled or is otherwise inapplicable" (Baptiste v Harding-Marin, 88 AD3d 752, 753 [2011]; see Zaborowski v Local 74, Serv.Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769 [2012]).
A cause of action alleging fraud must be commenced within six years of the fraud orwithin two years from the time the plaintiff discovered the fraud or could with reasonablediligence have discovered it (see CPLR 213 [8]; Sargiss v Magarelli, 12 NY3d527, 532 [2009]). A plaintiff will be held to have discovered the fraud when it isestablished that he or she was "possessed of knowledge of facts from which [the fraud]could be reasonably inferred" (Gorelick v Vorhand, 83 AD3d 893, 894 [2011] [internalquotation marks omitted]). "The two-year period begins to run when the circumstancesreasonably would suggest to the plaintiff that he or she may have been defrauded, so asto trigger a duty to inquire on his or her part" (Pericon v Ruck, 56 AD3d 635, 636 [2008]). The statute oflimitations for a cause of action alleging fraud applies to a cause of action allegingforgery (see Faison v Lewis,106 AD3d 1047, 1048 [2013]).
The plaintiff contends that the cause of action alleging fraud was not time-barredbecause she did not discover the allegedly fraudulent loan application until October2013. However, the plaintiff's own allegations establish that, in February 2007, she hadknowledge of facts, including the amount of the monthly obligation and her own abilityto afford the payment, from which any fraud in the loan application could reasonablyhave been inferred (see Gorelick v Vorhand, 83 AD3d at 894), or could havebeen discovered with reasonable diligence (see House of Spices [India], Inc. v SMJ Servs., Inc., 103 AD3d848, 849 [2013]). Since this action was not commenced until December 2013, theSupreme Court properly determined that the cause of action alleging fraud wastime-barred.
The cause of action alleging unjust enrichment is governed by the six-year statute oflimitations of CPLR 213 (1), which began to run in February 2007, upon the occurrenceof the alleged wrongful act giving rise to the duty of restitution (see Ingrami v Rovner, 45AD3d 806, 808 [2007]; Congregation Yetev Lev D'Satmar v 26 Adar N.B.Corp., 192 AD2d 501, 503 [1993]). Since this action was not commenced untilDecember 2013, the cause of action alleging unjust enrichment was time-barred.
The cause of action alleging a violation of General Business Law§ 349, which is governed by a three-year statute of limitations (seeCPLR 214 [2]; Corsello vVerizon N.Y., Inc., 18 NY3d 777, 778 [2012]; Gaidon v Guardian Life Ins.Co. of Am., 96 NY2d 201, 208 [2001]), was also time-barred, as the plaintiff'salleged injury occurred in February 2007, and she did not commence this action untilDecember 2013. Eng, P.J., Austin, Cohen and Barros, JJ., concur.