Goulian v. Gramercy 29 Apartments, Inc.

199 A.D.2d 98, 605 N.Y.S.2d 246

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered October 6, 1992, which to the extent appealed from, granted defendant’s motion dismissing plaintiffs’ first and second causes of action, unanimously affirmed, without costs.

Plaintiffs’ complaint alleging appropriation of their right to build on their roof space does not state a cause of action for trespass (see, Sporn v MCA Records, 58 NY2d 482, 487). As the alleged conversion or wrongful taking occurred in 1983, the claim is barred by the Statute of Limitations (CPLR 214 [3]). To the extent that the second cause of action alleges a claim based on fraud, not only does it lack specificity, it fails to allege the required elements of scienter and reliance (see, Lanzi v Brooks, 54 AD2d 1057, 1058). Moreover, said claim is also barred by the relevant Statute of Limitations since it is clear that plaintiffs should have been aware of or discovered the alleged fraud around the time of the construction of the greenhouse.

We have considered all other claims and find them to be meritless. Concur—Carro, J. P., Ellerin, Kupferman and Rubin, JJ.