Vaughan v. Mouton

Vaughan v Mouton (2021 NY Slip Op 50159(U)) [*1] Vaughan v Mouton 2021 NY Slip Op 50159(U) [70 Misc 3d 143(A)] Decided on February 26, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 26, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ 2019-1795 RI C Cheryl Vaughan, Appellant, against Debra Casertano Mouton, Respondent. Richard A. Rosenzweig, P.C. (Richard A. Rosenzweig of counsel), for appellant. Jacobi, Sieghardt, Bousanti, Piazza & Fitzpatrick, P.C. (Mark Piazza of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Richmond County (Sharon A. Bourne-Clarke, J.), entered October 4, 2019. The order denied plaintiff's motion to compel discovery and granted defendant's cross motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, without costs. Plaintiff commenced this action in January 2019 against defendant, her sister, to recover the sum of $9,913.68. The complaint stated that the parties' mother passed away in April 2008, that defendant forged plaintiff's signature on a death benefit check issued to plaintiff by the New York City Employees Retirement System (NYCERS), and that defendant deposited the funds in her own account, while fraudulently concealing these actions from plaintiff. It is uncontroverted that plaintiff filled out and signed the notarized form requesting the death benefit from NYCERS in 2008, that she requested that the check be sent by mail to defendant's address, and that plaintiff took no further action for over a decade. Plaintiff moved to compel discovery and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by the statute of limitations. By order entered October 4, 2019, the Civil Court denied plaintiff's motion and granted defendant's cross motion. Defendant's alleged cashing of the NYCERS check payable to plaintiff on an endorsement allegedly forged by defendant constitutes a cause of action sounding in conversion (see UCC 3-419 [1] [c]; see also Mouradian v Astoria Fed. Sav. & Loan, 91 NY2d 124, 128 [1997]). Conversion is subject to a three-year limitations period (see CPLR 214 [3]; see also Collymore v Secretary of Hous. & Urban Dev., 22 AD3d 703 [2005]). "[A]ccrual runs from the [*2]date the conversion takes place and not from discovery or the exercise of diligence to discover" (Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 44-45 [1995] [citation omitted]; see Obstfeld v Thermo Niton Analyzers, LLC, 168 AD3d 1080, 1083 [2019]). Since it is uncontested that these acts occurred more than three years prior to the commencement of this action, plaintiff's cause of action, insofar as it is based on conversion, was properly dismissed as time-barred. Even if, as defendant's cross motion for summary judgment assumes, plaintiff's complaint sufficiently alleges a cause of action for fraud (see 60A NY Jur 2d, Fraud and Deceit § 98; Dolan v Cummings, 116 App Div 787 [1907], affd 193 NY 638 [1908]), "the time within which [that cause of] action must be commenced [is] the greater of six years from the date the cause of action accrued or two years from the time the plaintiff . . . discovered the fraud, or could with reasonable diligence have discovered it" (CPLR 213 [8]). The alleged fraud here, that defendant converted the check without disclosing that fact to her sister, took place in 2008. Since plaintiff requested that the check be delivered to defendant, she knew or should have known shortly thereafter that she had not received the funds, and, with reasonable diligence, could have discovered the alleged fraud at that time. As plaintiff commenced this action 11 years later, any cause of action based on fraud is likewise time-barred. In light of this court's determination, so much of plaintiff's appeal as challenges the denial of her motion to compel discovery has been rendered moot. Accordingly, the order is affirmed. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: February 26, 2021