Summary
holding that plaintiff's cause of action accrued when the statements were first published, not when plaintiff discovered them two years later
Summary of this case from Hanly v. Powell Goldstein, LLPOpinion
April 19, 1996
Appeal from the Supreme Court, Nassau County, Becker, J.
Present — Pine, J.P., Fallon, Callahan, Balio and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the complaint as time barred based upon plaintiff's failure to commence the action within one year after the alleged defamatory statements were published ( see, CPLR 215). Contrary to plaintiff's contention, the action accrued when the statements were originally published in 1991 ( see, Bassim v Hassett, 184 A.D.2d 908, 910; Tomasino v. Morrow Co., 174 A.D.2d 734), not upon plaintiff's discovery of the statements two years later ( see, Fleischer v. Institute for Research in Hypnosis, 57 A.D.2d 535; see also, Karam v. First Am. Bank, 190 A.D.2d 1017, 1018). Even assuming, arguendo, that the statements were republished in March 1993 when defendants provided the documents containing them to plaintiff's attorneys during discovery in an unrelated action, plaintiff is deemed to have consented thereto because the documents were provided at her request ( see, Teichner v. Bellan, 7 A.D.2d 247, 251; Wells v. Belstrat Hotel Corp., 212 App. Div. 366).
We reject plaintiff's further contention that defendants are estopped from asserting the Statute of Limitations as a defense. Plaintiff has not alleged active concealment or misrepresentation of facts by defendants, and, thus, equitable estoppel does not apply ( see, Jordan v. Ford Motor Co., 73 A.D.2d 422; see also, Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, rearg denied 57 N.Y.2d 674). In view of our determination, we do not reach plaintiff's remaining contentions.