Opinion
Submitted February 25, 2000.
April 3, 2000.
In an action, inter alia, to recover damages for fraud and misrepresentation, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered December 22, 1998, which, after a hearing, granted that branch of the motion of the defendants Dolph Rotfeld and Dolph Rotfeld Engineering, P.C., which was to dismiss the eighth cause of action asserted in the complaint to recover damages for fraud and misrepresentation insofar as asserted against them.
Rothschild, Himmelfarb, Sher Pearl, LLP, White Plains, N Y (Norman D. Himmelfarb and Shelley R. Halber of counsel), for appellant.
WILLIAM C. THOMPSON, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The Supreme Court did not err in its determination, made after a hearing, that the plaintiff's eighth cause of action to recover damages for fraud and mispresentation was time-barred insofar as asserted against the defendants Dolph Rotfeld and Dolph Rotfeld Engineering, P.C. The plaintiff knew of, or with the exercise of reasonable diligence should have discovered, the facts underlying that cause of action insofar as asserted against those defendants more than two years before the commencement of the action (see, e.g., Shannon v. Gordon, 249 A.D.2d 291 ; Rosen v. Morben Props., 223 A.D.2d 584 ; Gerstenfeld v. Berman Realty Corp., 204 A.D.2d 512 ; TMG-II v. Price Waterhouse Co., 175 A.D.2d 21 ). The record establishes that the plaintiff had commissioned its engineer to address certain problems on the condominium grounds in 1991. In the course of that commission, the engineer failed to notice the exaggerated "slopes" currently complained of, and also failed to examine the file of the City of Peekskill Building Department on the project, which contained a 1987 letter from the City of Peekskill Director of Public Works pointing out that the slopes exceeded the maximum approved grade. Accordingly, the plaintiff had or should have had sufficient knowledge of the facts to create a duty of inquiry by 1991, as well as to defeat any claim of justifiable reliance (see, e.g., City of New York v. Morris J. Eisen, P.C., 226 A.D.2d 244; Gerstenfeld v. Berman Realty Corp., supra; 113-14 Owners Corp. v. Gertz, 123 A.D.2d 850 ; Most v. Monti, 91 A.D.2d 606 ).
The plaintiff's remaining contentions are without merit.