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ANNE NEWGARDEN, Appellant, v. FOTINI THEOHARIDOU et al., Respondents.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly determined that the plaintiff's complaint was time-barred by the four-year Statute of Limitations applicable to rent overcharge claims ( see, CPLR 213-a). The gravamen of the plaintiff's complaint is for rent overcharges and she may not escape the limitations period set forth in the statute by couching it in terms of fraud ( see, State of New York v. Cortelle Corp., 38 N.Y.2d 83, 86; New York Seven-Up Bottling Co. v. Dow. Chem. Co., 96 A.D.2d 1051, 1053, affd 61 N.Y.2d 828). The plaintiff's contention, raised for the first time on appeal, that the Supreme Court should have granted res judicata status to a Civil Court order issued while the motion and cross motion were sub judice is not property before this Court.

Sullivan, J. P., Pizzuto, Santucci and Florio, JJ., concur.

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NEWGARDEN v. THEOHARIDOU
(Feb 2, 1998)