Carbone v. Carbone

Defendant’s motion to dismiss the first cause of action pursuant to subdivision 6 of rule 107 of the Rules of Civil Practice is denied. The motion is predicated on the theory that the cause of action pleaded is for an annulment on the ground of fraud and that therefore the six-year Statute of Limitations after the discovery of the fraud applies. This premise is incorrect. None of the essential constituents of a fraud action, i.e., representation, falsity, scienter, . deception and damage are pleaded. (Hanlon v. Macfadden Publications, 302 N. Y. 502, 509, citing Ochs v. Woods, 221 N. Y. 335,…