Curry v. Chollette

57 A.D.2d 604, 393 N.Y.S.2d 787, 1977 N.Y. App. Div. LEXIS 11612

Opinion

In an action, inter alia, for a judgment declaring a separation agreement executed by the parties to be invalid, the plaintiff appeals from an order of the Supreme Court, Kings County, dated November 4, 1976, which granted the defendant-respondent’s motion to dismiss the action on the ground of the Statute of Limitations. Order affirmed, with $50 costs and disbursements. Appellant contends that he was induced into executing an inequitable and unconscionable separation agreement on July 8, 1969, which, inter alia, provided for alimony and future counsel fees for the respondent. Although his complaint alleges fraud, duress and overreaching, his cause of action is based upon a constructive fraud and is controlled by CPLR 213 (subd 1)—the six-year Statute of Limitations governing equitable actions in general. Thus, the cause of action accrued from the commission, rather than the discovery, of the fraud (see Buttles v Smith, 281 NY 226; 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48). Because the appellant chose not to challenge the separation agreement until July 16, 1976, a period of seven years from the date of its execution, his cause of action is time-barred (see Nusbaum v Nusbaum, 280 App Div 315). Martuscello, Acting P. J., Cohalan, Rabin and Mollen, JJ., concur.