Appellate Division of the Supreme Court of New York, First DepartmentDec 28, 2006
826 N.Y.S.2d 615 (N.Y. App. Div. 2006)

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No. 9952.

December 28, 2006.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 14, 2005, which, to the extent appealed from, granted the motion of defendants-respondents for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Abraham, Lerner Arnold, LLP, New York (Jonathan Abraham of counsel), for appellant.

Cooperman Lester Miller LLP, Manhasset (Eric H. Gruber of counsel), for respondents.

Before: Friedman, J.P., Nardelli, Gonzalez, Catterson and Kavanagh, JJ.

Plaintiff's claims against defendants-respondents arose, at the latest, in 1990. Accordingly, the complaint as against those defendants, which was not interposed until 1999, is time-barred. The doctrine of equitable estoppel does not avail plaintiff since there is no evidence that plaintiff's decedent "was induced by fraud, misrepresentations or deception . . . from filing a timely action" ( Simcuski v Saeli, 44 NY2d 442, 448-449; Kaufman v Cohen, 307 AD2d 113, 122). Indeed, the evidence establishes that plaintiff's decedent forbore from commencing an action even though he was aware before 1991 that the funds he had given to defendant Perla had not been invested in accordance with their agreement ( see Green v Albert, 199 AD2d 465).

We have considered plaintiff's remaining contentions and find them unavailing.