two-year discovery exception in New York

2025A cause of action based on fraud must be commenced within six years from the date the cause of action accrued or within two years from the time the plaintiff discovered the fraud or could with reasonable diligence have discovered it ( see CPLR 213[8]; Lipszyc v Lipszyc , 221 AD3d 992, 994). "'Where a [nonmoving party] relies upon the two-year discovery exception to the six-year limitations period, the burden of establishing that the fraud could not have been discovered prior to the two-year period . . . rests on the [party] who seeks the benefit of the exception'" ( Parizat v Meron , 231 AD3d

2025"Where a plaintiff relies upon the two-year discovery exception to the six-year limitations period, the burden of establishing that the fraud could not have been discovered prior to the two-year period before the commencement of the action rests on the plaintiff who seeks the benefit of the exception" ( Cannariato v Cannariato , 136 AD3d 627, 627 [alteration and internal quotation marks omitted]).

2024On a motion to dismiss, the defendant bears the initial burden of showing that the initial six-year statute of limitations for fraud has run; once met, the burden shifts to the plaintiff to show that the two-year discovery exception applies ( see Brooks v AXA Advisors, LLC [appeal No. 2], 104 AD3d 1178, 1180 [4th Dept 2013], lv denied 21 NY3d 858 [2013]).

2019Here, defendants established that the action was commenced more than six years from the dates of the alleged acts of fraud, thus "shifting the burden to plaintiffs to show that the two-year discovery exception applies" (Brooks v AXA Advisors, LLC [appeal No. 2], 104 AD3d 1178, 1180 [4th Dept 2013], lv denied 21 NY3d 858 [2013]).

2017Contrary to plaintiffs’ contention, the “record supports the court’s determination that plaintiffs possessed knowledge of facts from which they reasonably could have discovered the alleged fraud soon after it occurred, and in any event more than two years prior to the commencement of the action” (Brooks, 104 AD3d at 1180 ; see Giarratano v Silver, 46 AD3d 1053, 1056 ; Prestandrea v Stein, 262 AD2d 621, 622-623 ).

2017Contrary to plaintiffs’ contention, the “record supports the court’s determination that plaintiffs possessed knowledge of facts from which they reasonably could have discovered the alleged fraud soon after it occurred, and in any event more than two years prior to the commencement of the action” (Brooks, 104 AD3d at 1180 ; see Giarratano v Silver, 46 AD3d 1053, 1056 [2007]; Prestandrea v Stein, 262 AD2d 621, 622-623 [1999]).

2017Plaintiffs were therefore required to show that their fraud cause of action was timely pursuant to the two-year discovery exception (see Brooks v AXA Advisors, LLC [appeal No. 2], 104 AD3d 1178, 1180 , lv denied 21 NY3d 858 ; Vilsack v Meyer, 96 AD3d 827, 828 ).

2017Plaintiffs were therefore required to show that their fraud cause of action was timely pursuant to the two-year discovery exception (see Brooks v AXA Advisors, LLC [appeal No. 2], 104 AD3d 1178, 1180 [2013], lv denied 21 NY3d 858 [2013]; Vilsack v Meyer, 96 AD3d 827, 828 [2012]).

2017Under the circumstances, the Court is constrained to conclude that the claim is governed by a six-year statute of limitations as well as the two-year discovery rule ( see People Care , 141 AD3d at 790). [FN13] With the exception of the claim against Cool, the negligent misrepresentation claims accrued no later than December 31, 2007.

2017Under the circumstances, the Court is constrained to conclude that the claim is governed by a six-year statute of limitations as well as the two-year discovery rule ( see People Care , 141 AD3d at 790). [FN13] With the exception of the claim against Cool, the negligent misrepresentation claims accrued no later than December 31, 2007.

2017Contrary to plaintiffs’ contention, the “record supports the court’s determination that plaintiffs possessed knowledge of facts from which they reasonably could have discovered the alleged fraud soon after it occurred, and in any event more than two years prior to the commencement of the action” (Brooks, 104 AD3d at 1180 ; see Giarratano v Silver, 46 AD3d 1053, 1056 ; Prestandrea v Stein, 262 AD2d 621, 622-623 ).

2017Contrary to plaintiffs’ contention, the “record supports the court’s determination that plaintiffs possessed knowledge of facts from which they reasonably could have discovered the alleged fraud soon after it occurred, and in any event more than two years prior to the commencement of the action” (Brooks, 104 AD3d at 1180 ; see Giarratano v Silver, 46 AD3d 1053, 1056 [2007]; Prestandrea v Stein, 262 AD2d 621, 622-623 [1999]).

2025A cause of action based on fraud must be commenced within six years from the date the cause of action accrued or within two years from the time the plaintiff discovered the fraud or could with reasonable diligence have discovered it ( see CPLR 213[8]; Lipszyc v Lipszyc , 221 AD3d 992, 994). "'Where a [nonmoving party] relies upon the two-year discovery exception to the six-year limitations period, the burden of establishing that the fraud could not have been discovered prior to the two-year period . . . rests on the [party] who seeks the benefit of the exception'" ( Parizat v Meron , 231 AD3d

2024"The inquiry as to whether a plaintiff could, with reasonable diligence, have discovered the fraud turns on whether the plaintiff was possessed of knowledge of facts from which the fraud could be reasonably inferred" ( Sargiss v Magarelli , 12 NY3d 527, 532 [alterations and internal quotation marks omitted]; see Lipszyc v Lipszyc , 221 AD3d 992, 994 ).

2018PLC , 699 F3d 141, 155-156 [2d Cir 2012]; see e.g.

2017Yet, in any event, we find that it conclusively appears in this case that the plaintiffs had undisputed knowledge of facts by at least 2008 from which fraud could reasonably be inferred (Koch, 699 F3d at 155-156 [“(I)t is proper under New York law to dismiss a fraud claim on a motion to dismiss pursuant to the two-year discovery rule when the alleged facts do establish that a duty of inquiry existed and that an inquiry was not pursued” (citations omitted)]).

2017However, a six-year limitations period with the two-year discovery rule is available insofar as the claim is grounded upon essential allegations of actual fraud ( see Kaufman v Cohen , 307 AD2d 113, 119 [1st Dept 2003]).

2017However, a six-year limitations period with the two-year discovery rule is available insofar as the claim is grounded upon essential allegations of actual fraud ( see Kaufman v Cohen , 307 AD2d 113, 119 [1st Dept 2003]).

2014Nellie could have discovered facts constituting the fraud, or could have done so with reasonable diligence, in 2004 or at the latest on August 29, 2005 based on her receipt of the confirmation slips and monthly statements (see Kidder, Peabody & Co. v McArtor, 223 AD2d 502, 503 [1st Dept 1996]).

2014Nellie could have discovered facts constituting the fraud, or could have done so with reasonable diligence, in 2004 or at the latest on August 29, 2005 based on her receipt of the confirmation slips and monthly statements (see Kidder, Peabody & Co. v McArtor, 223 AD2d 502, 503 [1st Dept 1996]).

2025"A cause of action based upon fraud must be commenced within six years from the time of the fraud, or within two years from the time the fraud was discovered, or with reasonable diligence could have been discovered, whichever is longer" ( York v York , 235 AD3d 1032 , 1033 [internal quotation marks omitted]; see CPLR 203[g]; 213[8]; Sargiss v Magarelli , 12 NY3d 527, 532 ). "'Where[, as here,] a plaintiff relies upon the two-year discovery exception to the six-year limitations period, the burden of establishing that the fraud could not have been discovered prior to the two-year period before t

2025"A cause of action based upon fraud must be commenced within six years from the time of the fraud, or within two years from the time the fraud was discovered, or with reasonable diligence could have been discovered, whichever is longer" ( York v York , 235 AD3d 1032 , 1033 [internal quotation marks omitted]; see CPLR 203[g]; 213[8]; Sargiss v Magarelli , 12 NY3d 527, 532 ). "'Where[, as here,] a plaintiff relies upon the two-year discovery exception to the six-year limitations period, the burden of establishing that the fraud could not have been discovered prior to the two-year period before t

2024Although the question of when a nonmoving party could "'with reasonable diligence have discovered the alleged fraud' is ordinarily 'a mixed question of law and fact,' summary dismissal is appropriate 'where it conclusively appears that the [nonmoving party] has knowledge of facts which should have caused [him or] her to inquire and discover the alleged fraud'" ( Cannariato v Cannariato , 136 AD3d at 627-628 , quoting Rattner v York , 174 AD2d 718, 721 ; see Pare v Pare , 222 AD3d at 768-769).

2023"Although the question of when a plaintiff could 'with reasonable diligence have discovered the alleged fraud' is ordinarily 'a mixed question of law and fact,' summary dismissal is appropriate 'where it conclusively appears that the plaintiff has knowledge of facts which should have caused [him or] her to inquire and discover the alleged fraud'" ( Cannariato v Cannariato , 136 AD3d at 627-628 , quoting Rattner v York , 174 AD2d 718, 721 ).

2026Recognizing as much, Supreme Court utilized February 21, 2020 — the date Family Court issued its decision in the adoption proceeding — as the accrual date for purposes of applying the two-year discovery exception set forth in CPLR 213 (8), finding that this was the latest date by which plaintiff should have, with reasonable diligence, discovered the alleged fraud. [FN2] Insofar as the record conclusively demonstrates that plaintiff was aware, by at least the time Family Court issued its decision in the adoption proceeding on February 21, 2020, that a separation agreement bearing his signature

2016As to defendant’s fraud and fraudulent inducement causes of action, we conclude— consistent with our holding in Recco — that only those claims that accrued within six years of the filing of defendant’s third-party complaint on July 26, 2013 should be permitted to proceed (see CPLR 213 [8]; Soghanalian v Young, 131 AD3d 744, 745 [2015]; Dowlings, Inc. v Homestead Dairies, Inc., 88 AD3d 1226, 1228 [2011]).

2024"Where a [nonmoving party] relies upon the two-year discovery exception to the six-year limitations period, the burden of establishing that the fraud could not have been discovered prior to the two-year period . . . rests on the [party] who seeks the benefit of the exception" ( Cannariato v Cannariato , 136 AD3d at 627 [alterations and internal quotation marks omitted]; see Pare v Pare , 222 AD3d 765 ; Hillman v City of New York , 263 AD2d 529, 529 ; Lefkowitz v Appelbaum , 258 AD2d 563, 563 ).

2023"Where a plaintiff relies upon the two-year discovery exception to the six-year limitations period, the burden of establishing that the fraud could not have been discovered prior to the two-year period before the commencement of the action rests on the plaintiff who seeks the benefit of the exception" ( Cannariato v Cannariato , 136 AD3d at 627 [alterations and internal quotation marks omitted]; see Hillman v City of New York , 263 AD2d 529, 529 ; Lefkowitz v Appelbaum , 258 AD2d 563, 563 ).

2006Although, as the motion court noted, plaintiff indicated her belief that her income should not have been reported on a form 1099, she was reassured to the contrary by defendant Schultz. “[M]ere suspicion will not constitute a sufficient substitute” for knowledge of fraud (Erbe v Lincoln Rochester Trust Co., 3 NY2d 321, 326 [1957]; see also K&E Trading & Shipping v Radmar Trading Corp., 174 AD2d 346, 347 [1991]), but “[w]here it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, . . . the question should be left to the trier o

1990Inasmuch as there was no evidence that the plaintiff was guilty of a lack of due diligence, dismissal of the complaint was properly denied (see, Erbe v Lincoln Rochester Trust Co., 3 NY2d 321 ).

2026Recognizing as much, Supreme Court utilized February 21, 2020 — the date Family Court issued its decision in the adoption proceeding — as the accrual date for purposes of applying the two-year discovery exception set forth in CPLR 213 (8), finding that this was the latest date by which plaintiff should have, with reasonable diligence, discovered the alleged fraud. [FN2] Insofar as the record conclusively demonstrates that plaintiff was aware, by at least the time Family Court issued its decision in the adoption proceeding on February 21, 2020, that a separation agreement bearing his signature

2026Plaintiff's contention that the continuing wrong doctrine tolled the statute of limitations in this case is unavailing, as is any argument premised upon his difficulty in obtaining legal counsel to aid him in bringing this action ( see Henry v Bank of Am. , 147 AD3d 599, 602 [1st Dept 2017]).

2026Even providing plaintiff with the benefit of every favorable inference as the nonmoving party, Supreme Court properly concluded, as a matter of law, that his fraud claims relative to the signing of the separation agreement and the divorce papers were barred by the six-year statute of limitations, and were not saved by the two-year discovery exception ( see Goldring v Goldring , 290 AD2d 365, 365 [1st Dept 2002]).

2026Recognizing as much, Supreme Court utilized February 21, 2020 — the date Family Court issued its decision in the adoption proceeding — as the accrual date for purposes of applying the two-year discovery exception set forth in CPLR 213 (8), finding that this was the latest date by which plaintiff should have, with reasonable diligence, discovered the alleged fraud. [FN2] Insofar as the record conclusively demonstrates that plaintiff was aware, by at least the time Family Court issued its decision in the adoption proceeding on February 21, 2020, that a separation agreement bearing his signature

2025In opposition, the plaintiffs failed to establish that the action was timely commenced under the two-year discovery exception ( see Pare v Pare , 222 AD3d at 769; Kotlyarsky v Abrazi , 188 AD3d at 854-855).

2024Holdings Inc. v Barclays Bank PLC, 151 AD3d 108, 114 [1st Dept 2017], Iv denied, 31 NY3d 902 [2018]; Demian v Calmenson, 156 AD3d 422,423 [1st Dept 2017] [fraud and negligent misrepresentation].) Grosso does not and cannot contest the Movants' assertion that its fraud and negligent misrepresentation claims are subject to the greater of the six-year limitation or the two-year discovery rule.

2024Holdings Inc. v Barclays Bank PLC, 151 AD3d 108, 114 [1st Dept 2017], Iv denied, 31 NY3d 902 [2018]; Demian v Calmenson, 156 AD3d 422,423 [1st Dept 2017] [fraud and negligent misrepresentation].) Grosso does not and cannot contest the Movants' assertion that its fraud and negligent misrepresentation claims are subject to the greater of the six-year limitation or the two-year discovery rule.

2019The burden then shifts to the plaintiff to establish that even if it had exercised reasonable diligence, it could not have discovered the basis for its claims before that date ( see Berman v Holland & Knight, LLP , 156 AD3d 429, 430 [1st Dept 2017]; Aozora Bank, Ltd. v Deutsche Bank Sec.

2018Footnote 7: While the New York courts are not bound by the holdings of the lower federal courts ( see generally People v Kin Kan , 78 NY2d 54, 59-60 [1991]), particularly as to matters of New York law, this Court finds Judge Sharpe's decision in Grasso to be a highly persuasive application of the two-year discovery rule.

2018Footnote 7: While the New York courts are not bound by the holdings of the lower federal courts ( see generally People v Kin Kan , 78 NY2d 54, 59-60 [1991]), particularly as to matters of New York law, this Court finds Judge Sharpe's decision in Grasso to be a highly persuasive application of the two-year discovery rule.

2016As to defendant’s fraud and fraudulent inducement causes of action, we conclude— consistent with our holding in Recco — that only those claims that accrued within six years of the filing of defendant’s third-party complaint on July 26, 2013 should be permitted to proceed (see CPLR 213 [8]; Soghanalian v Young, 131 AD3d 744, 745 [2015]; Dowlings, Inc. v Homestead Dairies, Inc., 88 AD3d 1226, 1228 [2011]).

2016Where a plaintiff relies upon the two-year discovery exception to the six-year limitations period, “ ‘[t]he burden of establishing that the fraud could not have been discovered prior to the two-year period before the commencement of the action rests on the plaintiff who seeks the benefit of the exception’ ” (Sargiss v Magarelli, 50 AD3d 1117 , 1118 [2008], mod 12 NY3d 527 [2009], quoting Von Blomberg v Garis, 44 AD3d 1033, 1034 [2007]; see Sabbatini v Galati, 43 AD3d 1136, 1140 [2007]).