COLE v. FURMAN

Memorandum:

Supreme Court properly granted defendants' motion seeking dismissal of the complaint as time-barred ( see, CPLR 3211 [a] [5]). The causes of action based on fraud had to be asserted either within six years of the alleged fraud or within two years of the date on which the alleged fraud was or could with reasonable diligence have been discovered ( see, CPLR 203 [g]; 213 [8]). The alleged fraud occurred in August 1990, and this action was not commenced until July 2000. We agree with the court that plaintiffs could with reasonable diligence have discovered the fraud prior to July 1998. In addition, we reject the contention of Richard A. Cole, M.D. (plaintiff) that defendants should be equitably estopped from asserting the Statute of Limitations as an affirmative defense ( see generally, Simcuski v. Saeli, 44 N.Y.2d 442, 448-450; General Stencils v. Chiappa, 18 N.Y.2d 125, 127-128). All communication between plaintiff and defendants ended in December 1991, and plaintiff has not alleged that defendants thereafter took any action that would have led plaintiff to believe that defendants had not committed an alleged fraud against him.

The court did not abuse its discretion in denying plaintiff's motion seeking leave to renew defendants' motion. Although plaintiff submitted new information in support of the motion, he failed to provide a reasonable justification for his failure to include that new information at the time of the original motion ( see, CPLR 2221 [e] [3]; Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle, 271 A.D.2d 636, 638; Smith v. Isaac Heating Air Conditioning [appeal No. 1], 265 A.D.2d 821). In any event, we conclude that, even if renewal had been granted, the new information would not have resulted in the denial of the original motion.