Garber v. Ravitch

186 A.D.2d 361

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1992
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered June 14, 1991, which granted defendant’s motion for summary judgment dismissing plaintiffs complaint as time-barred, unanimously affirmed, without costs.

Plaintiffs argument that her cause of action is one for fraud, not replevin, and is therefore governed by the six-year limitation period set forth in CPLR 213 (8), not the three-year period set forth in CPLR 214 (3), is without merit. Where an allegation of fraud is not essential to the cause of action pleaded, its only purpose being to avoid an anticipated defense of the Statute of Limitations (it should be noted that plaintiff originally brought an action for conversion, which was, with her consent, dismissed without prejudice after defendant served an answer interposing the Statute of Limitations), courts "look for the reality, and the essence of the action and not its mere name.” (Brick v Cohn-Hall-Marx Co., 276 NY 259, 264.) Here, the alleged fraud being merely the means of accomplishing the conversion of plaintiffs property, it adds nothing to a cause of action sounding in replevin. Concur— Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.