LEFKOWITZ v. APPELBAUM (1999)

In an action to recover damages for fraud, the plaintiff appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), entered September 26, 1997, as granted those branches of the defendants' separate motions which were for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

 A cause of action based upon actual fraud must be commenced within six years of the commission of the fraud, or two years from the date the fraud could reasonably have been discovered, whichever is later (see, CPLR 213 [8], 203[g];  Baratta v. ABF Real Estate Co., 215 A.D.2d 518, 627 N.Y.S.2d 52).   The burden of establishing that the fraud could not have been discovered before the two-year period prior to the commencement of the action rests on the plaintiff, who seeks the benefit of the exception (see, Endervelt v. Slade, 214 A.D.2d 456, 625 N.Y.S.2d 210).   Here, the plaintiff commenced the action more than six years after the alleged fraud took place and more than two years after she could have discovered it.

With respect to the plaintiff's claims based on the alleged violations of Judiciary Law § 487, the trial court correctly dismissed those causes of action as barred by the three-year Statute of Limitations (see, Kuske v. Gellert & Cutler, P.C., 247 A.D.2d 448, 667 N.Y.S.2d 955;  see also, Jorgensen v. Silverman, 224 A.D.2d 665, 638 N.Y.S.2d 482).

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.