Stacom v. Wunsch

173 A.D.2d 401

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered June 18, 1990, which granted defendant’s motion for summary judgment and dismissed the complaint, unanimously affirmed, with costs.

On an earlier appeal (162 AD2d 170, lv and rearg denied [M-3122], lv dismissed 77 NY2d 873), we determined that plaintiff had ratified the separation agreement by accepting its benefits for a period of five years, without protest. Prior to the resolution of this earlier appeal, plaintiff amended her complaint to assert four causes of action sounding in prima facie tort, fraud and constructive trust. Thereafter, defendant successfully moved to dismiss these claims.

In view of plaintiff’s ratification of the separation agreement, the general release contained therein encompasses, and thus bars, claims for constructive trust and fraud. (Shalmoni v Shalmoni, 141 AD2d 628, lv dismissed 73 NY2d 851.) Furthermore, plaintiff’s prima facie tort claims are barred by the applicable three year statute of limitations period (CPLR 214 [4]) and, in any event, are inadequately pleaded (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314).

We have considered plaintiff’s remaining claims and find them to be without merit. Concur—Ellerin, J. P., Kupferman, Asch and Rubin, JJ.