discovery accrual rule in New York

2023An inquiry as to the time that a plaintiff could, with reasonable diligence, have discovered the fraud turns upon whether a person of ordinary intelligence possessed knowledge of facts from which the fraud could be reasonably inferred'" ( DiRaimondo v Calhoun , 131 AD3d at 1197 , quoting Kaufman v Cohen , 307 AD2d 113, 122-123 ).

2020Although the Plaintiffs do not supply legal authority in support of its argument, the Plaintiffs in sum and substance refer to the legal rule that where an allegation of fraud is essential to a breach of fiduciary duty claim, the statute of limitations is six years and the discovery accrual rule applies ( Gerschel v Christensen , 143 AD3d 555 , 557 [1st Dept 2016] [citations omitted]).

2020Although the Plaintiffs do not supply legal authority in support of its argument, the Plaintiffs in sum and substance refer to the legal rule that where an allegation of fraud is essential to a breach of fiduciary duty claim, the statute of limitations is six years and the discovery accrual rule applies ( Gerschel v Christensen , 143 AD3d 555 , 557 [1st Dept 2016] [citations omitted]).

2003“A cause of action sounding in fraud must be commenced within 6 years from the date of the fraudulent act or 2 years from the date the party discovered the fraud or could, with due diligence, have discovered it” (Ghandour v Shearson Lehman Bros., 213 AD2d 304, 305 [1995], lv denied 86 NY2d 710 [1995]; CPLR 213 [8]; 203 [g]). 4 The discovery accrual rule also applies to fraud-based breach of fiduciary duty claims (see Yatter v William Morris Agency, 268 AD2d 335, 336 [2000]; Whitney Holdings, Ltd. v Givotovsky, 988 F Supp at 744 ).

2003As noted above, the discovery accrual rule does not apply in cases alleging constructive fraud (see Whitney Holdings, Ltd. v Givotovsky, 988 F Supp at 744 ; Quadrozzi Concrete Corp. v Mastroianni, 56 AD2d at 356 ), and therefore the aiding and abetting claim is barred by the six-year statute of limitations (see CPLR 213 [1]).

1995The second issue raised by this appeal—when plaintiffs should have known that their injuries were the result of exposure to a toxic substance—is governed by this Court’s recent decision in Cochrane v Owens-Coming Fiberglass Corp. ( 219 AD2d 557 ).

1994Therefore, in the absence of a statutory mandate, there exists no basis for an expansion of the discovery accrual rule so as to , render it applicable to claims alleging the negligence of State employees in performing ministerial acts associated with the processing or filing of documents (see, e.g., Johnson v State of New York, 131 Misc 2d 630, 633 ; Di Maio v State of New York, 128 Misc 2d 101, 102 ). [See, 156 Misc 2d 979 .]

1994Therefore, in the absence of a statutory mandate, there exists no basis for an expansion of the discovery accrual rule so as to , render it applicable to claims alleging the negligence of State employees in performing ministerial acts associated with the processing or filing of documents (see, e.g., Johnson v State of New York, 131 Misc 2d 630, 633 ; Di Maio v State of New York, 128 Misc 2d 101, 102 ). [See, 156 Misc 2d 979 .]

1994Therefore, in the absence of a statutory mandate, there exists no basis for an expansion of the discovery accrual rule so as to , render it applicable to claims alleging the negligence of State employees in performing ministerial acts associated with the processing or filing of documents (see, e.g., Johnson v State of New York, 131 Misc 2d 630, 633 ; Di Maio v State of New York, 128 Misc 2d 101, 102 ). [See, 156 Misc 2d 979 .]

1994Hosp. ( 24 NY2d 427 ) wherein it judicially created the exception, subsequently codified by the Legislature in CPLR 214-a, providing for a discovery accrual rule governing malpractice claims based upon the failure to remove a surgical clamp from a patient’s body.

1994Indeed, when faced with an issue of this nature, the Court of Appeals has consistently refused to extend the discovery rule beyond the limited instances provided by the Legislature (see, e.g., Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, 1011 , cert denied 456 US 967 ; Schwartz v Heyden Newport Chem.

1994Indeed, when faced with an issue of this nature, the Court of Appeals has consistently refused to extend the discovery rule beyond the limited instances provided by the Legislature (see, e.g., Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, 1011 , cert denied 456 US 967 ; Schwartz v Heyden Newport Chem.

1987His notice of claim, filed September 28, 1985, did not comply with the 90-day limit of General Municipal Law § 50-e. Finally, we hold that plaintiffs’ belated contention of equitable estoppel cannot be considered by this court in that it was not raised below (see, e.g., Matter of County of Broome v Eronimous, 81 AD2d 984, 985 ).

1987Relying on Kelly v City of Rochester ( 98 Misc 2d 435 ), plaintiffs urge this court to apply a discovery accrual rule and contend that their claims did not accrue until they were formally made aware of what had been done.

1986Although the trial court found the date of discovery of the error to be the date of accrual, the Appellate Division in affirming found the action timely, not by application of a discovery accrual rule but by virtue of the fact that the claim was one for indemnification or contribution which did not accrue until the date of payment (see, Bay Ridge Air Rights v State of New York, 44 NY2d 49 ).

1985Concealment with intent to defraud of facts which one is duty-bound in honesty to disclose is of the same legal effect and significance as affirmative misrepresentations of fact (Forker v Brown, supra).’ ” (Quadrozzi Concrete Corp. v Mastroianni, 56 AD2d 353, 356-357 [citing Nasaba Corp. v Harfred Realty Corp., 287 NY 290, 295 ].) Based on the above statement of law it is this court’s opinion that claimant has set forth facts sufficient to allege an action for actual fraud to which a discovery accrual rule applies (CPLR 213 [8]; see also, McLaughlin, Practice Commentaries, McKinney’s Cons Laws

1985Concealment with intent to defraud of facts which one is duty-bound in honesty to disclose is of the same legal effect and significance as affirmative misrepresentations of fact (Forker v Brown, supra).’ ” (Quadrozzi Concrete Corp. v Mastroianni, 56 AD2d 353, 356-357 [citing Nasaba Corp. v Harfred Realty Corp., 287 NY 290, 295 ].) Based on the above statement of law it is this court’s opinion that claimant has set forth facts sufficient to allege an action for actual fraud to which a discovery accrual rule applies (CPLR 213 [8]; see also, McLaughlin, Practice Commentaries, McKinney’s Cons Laws