Mangno v. Mangno

Appellate Division of the Supreme Court of New York

Mangno v. Mangno

206 A.D.2d 936, 615 N.Y.S.2d 181, 1994 N.Y. App. Div. LEXIS 7882

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 15, 1994

StatusPublished

Cited by1 cases

This text of 206 A.D.2d 936 (Mangno v. Mangno) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mangno v. Mangno, 206 A.D.2d 936, 615 N.Y.S.2d 181, 1994 N.Y. App. Div. LEXIS 7882 (N.Y. Ct. App. 1994).

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Opinion

Order unanimously affirmed without costs. Memorandum: Plaintiff appeals from an order dismissing her first cause of action against her daughter-in-law Elizabeth Mangno, individually and as executrix of the estate of plaintiff’s son Michael Mangno, and dismissing her second cause of action against defendant Robert Paul Merino for legal malpractice. Defendant Mangno, as executrix, cross-appeals from the denial of her motion to dismiss plaintiff’s third cause of action.

Supreme Court properly dismissed the first cause of action, which was based upon the demand notes executed by decedent on May 3, 1979, and November 27, 1979. The Statute of Limitations on a demand note is six years from "the day following its date without any prior demand” (Environics, Inc. v Pratt, 50 AD2d 552, 553; see, CPLR 213 [2]; UCC 3-122). Contrary to plaintiff’s contention, the estoppel doctrine is not available to plaintiff on this cause of action; plaintiff did not allege any deception or misrepresentation by decedent (cf., Arbutina v Bahuleyan, 75 AD2d 84). The court also properly dismissed the first cause of action against defendant Mangno individually because it is insufficient as a matter of law.

In addition, the court properly dismissed as time-barred the second cause of action, which alleged legal malpractice by defendant Merino (see, Santulli v Englert, Reilly & McHugh, [937]*93778 NY2d 700, 707-709; CPLR 213 [2]). Defendant Merino is not estopped from relying on the Statute of Limitations; plaintiff has not alleged that Merino made subsequent misrepresentations in an attempt to conceal his earlier negligence (see, Rizk v Cohen, 73 NY2d 98, 105-106).

The court properly denied the motion of defendant Mangno, as executrix, to dismiss the third cause of action. The Statute of Frauds does not apply to contracts capable of being performed within one year (General Obligations Law § 5-701 [a] [1]; Cheney v Walsh, 174 AD2d 1042). (Appeal from Order of Supreme Court, Niagara County, Rath, Jr., J.—Dismiss Causes of Action.) Present—Pine, J. P., Balio, Fallon, Wesley and Davis, JJ.

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Order unanimously affirmed without costs. Memorandum: Plaintiff appeals from an order dismissing her first cause of action against her daughter-in-law Elizabeth Mangno, individually and as executrix of the estate of plaintiff’s son Michael Mangno, and dismissing her second cause of action against defendant Robert Paul Merino for legal malpractice. Defendant Mangno, as executrix, cross-appeals from the denial of her motion to dismiss plaintiff’s third cause of action.

Supreme Court properly dismissed the first cause of action, which was based upon the demand notes executed by decedent on May 3, 1979, and November 27, 1979. The Statute of Limitations on a demand note is six years from "the day following its date without any prior demand” (Environics, Inc. v Pratt, 50 AD2d 552, 553; see, CPLR 213 [2]; UCC 3-122). Contrary to plaintiff’s contention, the estoppel doctrine is not available to plaintiff on this cause of action; plaintiff did not allege any deception or misrepresentation by decedent (cf., Arbutina v Bahuleyan, 75 AD2d 84). The court also properly dismissed the first cause of action against defendant Mangno individually because it is insufficient as a matter of law.

In addition, the court properly dismissed as time-barred the second cause of action, which alleged legal malpractice by defendant Merino (see, Santulli v Englert, Reilly & McHugh, [937]*93778 NY2d 700, 707-709; CPLR 213 [2]). Defendant Merino is not estopped from relying on the Statute of Limitations; plaintiff has not alleged that Merino made subsequent misrepresentations in an attempt to conceal his earlier negligence (see, Rizk v Cohen, 73 NY2d 98, 105-106).

The court properly denied the motion of defendant Mangno, as executrix, to dismiss the third cause of action. The Statute of Frauds does not apply to contracts capable of being performed within one year (General Obligations Law § 5-701 [a] [1]; Cheney v Walsh, 174 AD2d 1042). (Appeal from Order of Supreme Court, Niagara County, Rath, Jr., J.—Dismiss Causes of Action.) Present—Pine, J. P., Balio, Fallon, Wesley and Davis, JJ.

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206 A.D.2d 936, 615 N.Y.S.2d 181, 1994 N.Y. App. Div. LEXIS 7882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mangno-v-mangno-nyappdiv-1994.

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