Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified by deleting the provision thereof dismissing the complaint in its entirety insofar as asserted against the respondents and substituting therefor provisions (1) dismissing the first through fifth, and seventh causes of action to the extent that they relate to the 1973 conveyance by Robert E. Boyle to his wife of the parcel of real property known as South Mountain Pass, located in Peekskill, New York, (2) dismissing the first through fourth causes of action to the extent that they relate to the 1989 conveyance by Robert E. Boyle of his partnership interest in West Liberty Group II, and (3) dismissing the sixth and eighth causes of action; as so modified, the judgment is affirmed, and the order entered February 25, 1999, is modified accordingly; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] ).
In or about December 1989, the plaintiff commenced an action in the Superior Court, Windsor County, Vermont, against, among others, the defendant Robert E. Boyle (hereinafter Boyle). In February 1996, a judgment in the total sum of $315,700 was entered in favor of the plaintiff. In August 1998, the plaintiff commenced this action pursuant to Debtor and Creditor Law article 10 to set aside three conveyances involving various defendants under theories of both constructive and actual fraud.
A cause of action based on constructive fraud in New York is governed by a six-year Statute of Limitations (see, CPLR 213 ), and such a cause of action arises at the time the fraudulent conveyance occurs (see, Wall St. Assocs. v Brodsky, 257 A.D.2d 526, 530). A cause of action based on actual fraud pursuant to Debtor and Creditor Law § 276 must be brought within six years of the date that the fraud or conveyance occurs or within two years of the date that the fraud should have been discovered, whichever is longer (see, Wall St. Assocs. v Brodsky, supra; Leone v Sabbatino, 235 A.D.2d 460; Ghandour v Shearson Lehman Bros., 213 A.D.2d 304). The plaintiff's causes of action based on actual and constructive fraud insofar as they relate to an alleged fraudulent conveyance in 1973 of property located in Peekskill are barred by the Statute of Limitations. The plaintiff's causes of action based on constructive fraud challenging the 1989 conveyance by Boyle of his partnership interest in West Liberty Group II are also barred by the Statute of Limitations. Since it cannot be determined, however, as a matter of law, whether the plaintiff's cause of action based on actual fraud as it relates to Boyle's 1989 transfer of his partnership interest could have been discovered before 1998, this cause of action is reinstated.
The court erred in granting the motion to dismiss the plaintiff's cause of action based on constructive and actual fraud for failure to state a cause of action with respect to the 1993 conveyance of a commercial lease from the defendant Rogene Industries, Inc. (hereinafter Rogene) to the defendant
The court properly dismissed the plaintiff's sixth and eighth causes of action as they failed to state a claim for which relief may be granted (see, CPLR 3211 [a] ; 8302 [b]).