DeLUCA v. DeLUCA

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Supreme Court, Appellate Division, First Department, New York.

Jane M. DeLUCA, Plaintiff-Appellant, v. Peter C. DeLUCA, Defendant-Respondent, Jane Doe, et al., Defendants.

Decided: February 26, 2008

LIPPMAN, P.J., TOM, NARDELLI, CATTERSON, MOSKOWITZ, JJ. Law Office of Dominic A. Barbara, Garden City (Dominic A. Barbara of counsel), for appellant. Sheresky Aronson Mayefsky & Sloan, LLP, New York (David Aronson of counsel), for respondent.

Order, Supreme Court, New York County (Laura Visitación-Lewis, J.), entered November 22, 2006, which granted defendant Peter DeLuca's motion to dismiss the complaint and denied plaintiff's cross motion to amend the complaint, unanimously affirmed, without costs.

Plaintiff seeks to vacate the stipulation of settlement executed by the parties in their divorce action and incorporated, but not merged, into their 1998 judgment of divorce on the ground that defendant fraudulently concealed assets from her and colluded with others to tamper with the divorce proceedings.

A cause of action based on fraud must be commenced within six years from the time of the fraud, or within two years from the time the fraud was discovered or with reasonable diligence could have been discovered, whichever is later (see CPLR 213[8], 203[g];  Saphir Intl., SA v. UBS PaineWebber Inc., 25 A.D.3d 315, 807 N.Y.S.2d 58 [2006] ).

Here, the fraud allegedly occurred, and plaintiff's cause of action accrued, prior to execution of the stipulation of settlement on July 13, 1998, more than six years before her complaint was filed.   In “late 2003,” plaintiff was put on inquiry notice of the facts she now claims were fraudulently concealed from her, yet her complaint was filed more than two years thereafter.   Accordingly, her cause of action is time-barred (see Lucas-Plaza Hous. Dev. Corp. v. Corey, 23 A.D.3d 217, 805 N.Y.S.2d 9 [2005];  TMG-II v. Price Waterhouse & Co., 175 A.D.2d 21, 572 N.Y.S.2d 6 [1991], lv. denied 79 N.Y.2d 752, 580 N.Y.S.2d 199, 588 N.E.2d 97 [1992] ).   Because we hold the action untimely, we do not reach the issue of whether the fraud was sufficiently pleaded.

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