Johnson v. Gold

71 A.D.2d 1056, 420 N.Y.S.2d 816, 1979 N.Y. App. Div. LEXIS 13442

Opinion

—Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: Plaintiff sues defendant, a lawyer, alleging in three

separate causes of action that defendant had agreed to represent him in a sale of real estate and had failed to keep the check for the proceeds in safekeeping until plaintiff recovered from a stroke; had converted the check to his own use; and had defrauded plaintiff and negligently performed his fiduciary duty. A check in the proper amount was turned over to plaintiff who indorsed it. It was thereafter indorsed by plaintiff’s son before being deposited. Since the retainer of defendant occurred in 1973, plaintiff attempts to categorize this action which he commenced in 1978 as one either in contract or fraud so as to obtain the benefit of the six-year Statute of Limitations (CPLR 213, subds 2, 8). We must look to the "reality, and the essence of the action and not its mere name” (Brick v Cohn-Hall-Marx Co., 276 NY 259, 264). Viewed in that light the wrong complained of, although arising from plaintiff’s retainer of defendant, essentially consists of a claim that defendant failed to use due care and thus is cognizable in either negligence or malpractice both of which actions are limited by a three-year statute (CPLR 214, subds 4, 6). We conclude that it is the three-year Statute of Limitations which applies and that plaintiff’s action is, therefore, time barred (see Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 675). (Appeal from order of Niagara Supreme Court—dismiss complaint.) Present—Cardamone, J. P., Simons, Hancock, Jr., Callahan and Moule, JJ.