Summary
holding that three year limitations period applicable to causes of action for conversion “began to run at the time of the alleged theft even if plaintiff was then unaware of it”
Summary of this case from Mantis Transp. v. KennerOpinion
June 22, 2000.
Order, Supreme Court, New York County (Edward Lehner, J.), entered January 20, 2000, which, in an action arising out of defendant's alleged theft of plaintiff's mail, granted defendant's motion to dismiss the complaint as time-barred, unanimously affirmed, without costs.
Andrew T. Miltenberg, for plaintiff-appellant.
Heath B. Kushnick, for defendant-respondent.
Before: Williams, J.P., Tom, Lerner, Andrias, Friedman, JJ.
The action is barred by the three-year limitations period applicable to causes of action for conversion (CPLR 214; see, Powers Mercantile Corp. v. Feinberg, 109 A.D.2d 117, 121, affd for reasons stated 67 N.Y.2d 981), which began to run at the time of the alleged theft even if plaintiff was then unaware of it (see, Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 318). Nor can defendant be estopped from asserting the Statute of Limitations absent an allegation that he "made an actual misrepresentation or committed some other affirmative wrongdoing" that induced plaintiff to delay bringing the action in timely manner (Powers Mercantile Corp. v. Feinberg, supra, at 122; compare, e.g.,Simcuski v. Saeli, 44 N.Y.2d 442, 448; Matter of Spewack, 203 A.D.2d 133). Plaintiff does not make such an allegation.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.