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Failure to Demonstrate When Plaintiff Should Have First Become Aware of Fraudulent Conveyance Precluded Dismissal on Statute of Limitations Grounds​

The Second Department determined that causes of action alleging fraudulent conveyances pursuant to Debtor & Creditor Law 276 should not have been dismissed on statute of limitations grounds because the defendants failed to establish when plaintiff should have first become aware of the alleged fraud:

“A cause of action based upon actual fraud under Debtor and Creditor Law § 276 must be brought within six years of the date that the fraud or conveyance occurs, or within two years of the date the fraud should have been discovered, whichever is longer” …. Here, it is undisputed that the verified complaint did not allege the occurrence of any fraudulent conveyances within six years prior to the commencement of the action. However, since it is unclear when the plaintiff should have first been aware of the alleged fraud, the defendants failed to establish that the causes of action alleging actual fraud under Debtor and Creditor Law § 276 should be dismissed as time-barred ….  Felshman v Yamali, 2013 NY Slip Op 03632, 2nd Dept, 5-22-13

 

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WHERE THE ONLY RELIEF SOUGHT FOR BREACH OF FIDUCIARY DUTY IS MONEY DAMAGES, THE STATUTE OF LIMITATIONS IS THREE YEARS (SECOND DEPT).
THE MAJORITY DETERMINED MOTHER’S PARENTAL RIGHTS WERE PROPERLY TERMINATED; MOTHER AND THE DISSENT ARGUED THE DEPARTMENT OF SOCIAL SERVICES DISCOURAGED HER FROM COMMUNICATING WITH IT WELL BEFORE THE ABANDONMENT PERIOD (SIX MONTHS BEFORE THE FILING OF THE TERMINATION PETITION) AND THE JUDGE ERRONEOUSLY PROHIBITED HER FROM PRESENTING EVIDENCE FROM BEFORE THE ABANDONMENT PERIOD (SECOND DEPT).
FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT).
UNDER THE CIRCUMSTANCES, SUPREME COURT SHOULD HAVE GRANTED THE DEFENSE AND PROSECUTION’S JOINT REQUEST TO HAVE THE DEFENDANT’S COMPETENCE TO STAND TRIAL EVALUATED; ONCE A DEFENDANT IS DEEMED COMPETENT TO STAND TRIAL, THE DECISION WHETHER TO PRESENT AN INSANITY DEFENSE IS THE DEFENDANT’S, NOT THE COURT’S, TO MAKE (SECOND DEPT).
THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT).
IN THIS FORECLOSURE DEFICIENCY-JUDGMENT CASE, THE FAIR VALUE OF THE PROPERTY WAS CONSIDERABLY HIGHER THAN THE LIQUIDATION VALUE USED BY THE COURT TO CALCULATE THE DEFICIENCY JUDGMENT (SECOND DEPT).
THE RPAPL 1304 NOTICE WAS DEFECTIVE ON ITS FACE; PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF IN THIS SLIP AND FALL CASE DID NOT SEE THE CONDITION THAT CAUSED HIM TO FALL NEAR A SINK IN DEFENDANTS’ BATHROOM, BUT HIS PANTS WERE WET AFTER THE FALL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE GROUND THAT PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS FALL SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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