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LUCA CAPPELLI, APPELLANT, v. BERKSHIRE LIFE INSURANCE CO., ET AL., RESPONDENTS.

DECISION ORDER

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly granted summary judgment to the defendants dismissing the complaint since the plaintiff's causes of action are time-barred. Contrary to the plaintiff's contention, his cause of action alleging breach of contract is time barred by the six-year Statute of Limitations (see, Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402; Cole v. Equitable Life Assur. Soc'y of the United States, nbsp; A.D.2d [1st Dept., Apr. 13, 2000]).

The plaintiff's cause of action sounding in fraud was not commenced within six years from the date that the alleged fraud was committed, or two years from the date the fraud was discovered or, with the exercise of reasonable diligence, should have been discovered (see, Lazzaro v. Kelly, 87 A.D.2d 975, 977; Quadrozzi Concrete Corp. v. Mastroianni, 56 A.D.2d 353, 355-356). Accordingly, that cause of action is barred by the Statute of Limitations.

The plaintiff's negligence cause of action is similarly barred by the three-year Statute of Limitations which accrued on the date when the insurance policy was sold to the plaintiff, not when the plaintiff was required to pay additional premiums or when the policy was cancelled (see, Cole v. Equitable Life Assur. Soc'y of the United States, supra; Jackson v. L.P. Trans., 72 N.Y.2d 975, 976).

The plaintiff's remaining contentions are without merit.

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CAPPELLI v. BERKSHIRE LIFE INS
(Oct 2, 2000)