MILLER v. POLOW


14 A.D.3d 368 (2005)

787 N.Y.S.2d 319

ROGER MILLER et al., Respondents, v. IAN POLOW, as Cotrustee of Trust for Benefit of DEBORAH HARI DONIGER, Appellant, et al., Defendants.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 11, 2005.


An action for an actual fraudulent conveyance under Debtor and Creditor Law § 276 must, like other actions based on fraud, be commenced within six years from the date of the fraud, or within two years after the plaintiff discovered the fraud, or could with reasonable diligence have discovered it, whichever is longer (CPLR 203 [g]; 213 [8]; see Avalon LLC v Coronet Props. Co., 306 A.D.2d 62, 63 [2003], lv denied 100 N.Y.2d 513 [2003]). On this record, triable issues of fact exist as to whether, more than two years before this action was commenced in 2002, plaintiffs had information from which they reasonably could have inferred that the challenged 1993 conveyance by defendant William R. Doniger was made "with actual intent . . . to hinder, delay, or defraud" (Debtor and Creditor Law § 276) plaintiffs in their efforts to recover money damages from Doniger on a claim litigated in a different action (see Trepuk v Frank, 44 N.Y.2d 723, 724-725 [1978]; Erbe v Lincoln Rochester Trust Co., 3 N.Y.2d 321, 326 [1957]; Kaufman v Cohen, 307 A.D.2d 113, 122-123 [2003]; K & E Trading & Shipping v Radmar Trading Corp., 174 A.D.2d 346, 347 [1991]). Since it cannot be said that the instant action is time-barred as a matter of law, the IAS court correctly denied the motion for summary judgment and reserved the issue of the action's timeliness for determination at trial.


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