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Curry v. Chollette

Appellate Division of the Supreme Court of New York, Second Department
Apr 25, 1977
57 A.D.2d 604 (N.Y. App. Div. 1977)

Opinion

April 25, 1977


In an action, inter alia, for a judgment declaring a separation agreement executed by the parties to be invalid, the plaintiff appeals from an order of the Supreme Court, Kings County, dated November 4, 1976, which granted the defendant-respondent's motion to dismiss the action on the ground of the Statute of Limitations. Order affirmed, with $50 costs and disbursements. Appellant contends that he was induced into executing an inequitable and unconscionable separation agreement on July 8, 1969, which, inter alia, provided for alimony and future counsel fees for the respondent. Although his complaint alleges fraud, duress and overreaching, his cause of action is based upon a constructive fraud and is controlled by CPLR 213 (subd 1) — the six-year Statute of Limitations governing equitable actions in general. Thus, the cause of action accrued from the commission, rather than the discovery, of the fraud (see Buttles v Smith, 281 N.Y. 226; 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 N.Y.2d 48). Because the appellant chose not to challenge the separation agreement until July 16, 1976, a period of seven years from the date of its execution, his cause of action is time-barred (see Nusbaum v Nusbaum, 280 App. Div. 315). Martuscello, Acting P.J., Cohalan, Rabin and Mollen, JJ., concur.


Summaries of

Curry v. Chollette

Appellate Division of the Supreme Court of New York, Second Department
Apr 25, 1977
57 A.D.2d 604 (N.Y. App. Div. 1977)
Case details for

Curry v. Chollette

Case Details

Full title:LOUIS CURRY, Appellant, v. TONI CHOLLETTE, Formerly Known as TONI CURRY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 25, 1977

Citations

57 A.D.2d 604 (N.Y. App. Div. 1977)

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