Simpkins v. Mackey

Full title: Arthur Simpkins, appellant, v. Joseph Mackey, et al., respondents.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Apr 19, 2017

149 A.D.3d 1002 (N.Y. App. Div. 2017)

2017 N.Y. Slip Op. 3033

50 N.Y.S.3d 303

Opinion

2014-08494

04-19-2017

Arthur Simpkins, appellant, v. Joseph Mackey, et al., respondents.

Arthur Simpkins, Melville, NY, appellant pro se.

RUTH C. BALKIN, J.P.

LEONARD B. AUSTIN SANDRA L. SGROI HECTOR D. LASALLE, JJ. (Index No. 11674/13)

Arthur Simpkins, Melville, NY, appellant pro se.

DECISION & ORDER

Appeal from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated June 23, 2014. The order, insofar as appealed from, granted that branch of the defendants' cross motion which was to dismiss the complaint.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

In April 2013, the plaintiff commenced this action, inter alia, to recover damages for fraud, alleging that the defendant Mary Mackey falsely represented to the police that the plaintiff had issued bad rent checks in connection with certain premises leased by the plaintiff. The plaintiff moved for summary judgment on the issue of liability, and the defendants cross-moved, among other things, pursuant to multiple provisions of CPLR 3211(a) to dismiss the complaint. In an order dated June 23, 2014, the Supreme Court, inter alia, granted that branch of the defendants' cross motion which was to dismiss the complaint as time-barred. The plaintiff appeals.

"A cause of action based upon 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 longer" (Coleman v Wells Fargo & Co., 125 AD3d 716, 716; see CPLR 203[g]; 213[8]). Here, the record demonstrates that the cause of action alleging fraud accrued in September 2004, when Mary Mackey allegedly made false statements to the police regarding the plaintiff's rent checks. Thus, the statute of limitations for that cause of action expired in September 2010, prior to the commencement of this action in 2013.

The plaintiff's remaining contentions either are without merit or need not be addressed in light of our determination.

Accordingly, the Supreme Court properly granted that branch of the defendants' cross motion which was to dismiss the complaint.

BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court