2023 NY Slip Op 03369
Francisca Trujillo, Plaintiff,
v.
Edwin Collado, Defendant Third-Party Plaintiff-Respondent;
Anthony Trujillo, Third-Party Defendant-Appellant.
Index No. 708340/19, No. 2020-05207
Supreme Court of New York, Second Department
June 21, 2023
Buchanan Ingersoll & Rooney, P.C., New York, NY (Keith A. Lazere and Stuart P. Slotnick of counsel), for third-party defendant-appellant.
Gerard J. White, P.C., Malverne, NY, for defendant third-party plaintiff-respondent.
FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, ROBERT J. MILLER, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for fraud, the third-party defendant appeals from an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), entered May 15, 2020. The order denied the motion of the third-party defendant pursuant to CPLR 3211(a) to dismiss the third-party complaint.
ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the third-party defendant pursuant to CPLR 3211(a) which were to dismiss the third-party cause of action to recover damages for fraud and so much of the third-party cause of action to recover damages for breach of contract as was predicated upon the third-party defendant's alleged failure to repay funds due to the third-party plaintiff between 1998 and May 2013, and to pay to the third-party plaintiff certain rental income allegedly due to the third-party plaintiff prior to October 25, 2013, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
In May 2019, the plaintiff, Francisca Trujillo, commenced this action against Edwin Collado, inter alia, to recover damages for fraud in connection with her transfer to him of real property located in Corona (hereinafter the subject property) in May 2013. On October 25, 2019, Collado commenced a third-party action against the third-party defendant, Anthony Trujillo (hereinafter Trujillo), the plaintiff's son, to recover damages for breach of contract and fraud, and for indemnification.
On January 6, 2020, Trujillo filed a pre-answer motion pursuant to CPLR 3211(a) to dismiss the third-party complaint, asserting that the causes of action were time-barred, that the third-party complaint failed to state a cause of action for fraud with the requisite particularity, and that the breach of contract claims were barred by the statute of frauds. By order entered May 15, 2020, the Supreme Court denied the motion, concluding that the motion was untimely and, in any event, without merit. Trujillo appeals.
Contrary to...
