De Vito v. New York Central System

Eager, J. (dissenting).

From early times it has been the law of this State, based in sound policy, that, except as provided by statute in cases originally grounded in fraud, it was no answer to a plea of the Statute of Limitations that a 1 ‘ cause of action was fraudulently concealed by the defendant until after the statute had attached, and that the suit was brought within the time limited by the statute after the discovery of the right to sue.” (Andreac v. Redfield, 98 U. S. 225, 237, applying New York law, and citing Allen v. Mille, 17 Wend. 204 and Leonard v. Pitney, 5 Wend. 30.) “ It is a benign statute, and the legislature has written in it all the exceptions which sound policy dictated to it. It may frequently operate to defeat just claims and be used by dishonest debtors to escape the payment of honest debts. A cause of action may be barred before it is known to the claimant. The debtor may purposely conceal it, and yet the bar of the statute must inexorably be applied.” (Engel v. Fischer, 102 N. Y. 400, 404.) “ Considering the *604function of a Statute of Limitations as a device for repose, a potential defendant’s equities are the same whether the plaintiff knows of his condition or not [or, I would add, the existence of his cause of action]. Repose is as beneficial to society in the one case as in the other. While the plaintiff’s equities are greater in one case, it was presumably pursuant to a determination that the interests of an occasional claimant were subordinate to society’s interest in repose that resulted in the Statute of Limitations in the first place.” (Schwarts v. Heyden Chem. Corp., 12 N Y 2d 212, 218.)

The statute expressly provides that “ [t]he time within which an action must be commenced * * * shall be computed from the time the cause of action accrued ” (CPLR 203). It is further mandated that “ [n]o court shall extend the time limited by law for the commencement of the action ” (CPLR 201). As this court said in Guild v. Hopkins (271 App. Div. 234, 244), it is immaterial that a plaintiff may not have discovered the wrongs complained of until long after they were committed * * *. (Brick v. Cohn-Hall-Marx Co., 276 N. Y. 259; Wood v. Young, 141 N. Y. 211, 217; Wakulaw v. State Bank, 214 App. Div. 673, 677.) ‘ Except in cases of fraud where the statute expressly provides otherwise the statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury. ’ (Schmidt v. Merchants Desp. Trans. Co., 270 N. Y. 287, 300.) ”

The strict application of the statute may result in unfairness in a given ease. “ But this is the same kind of unfairness ’ that may result from almost any Statute of Limitations. Indeed it results from the fundamental New York theory of limitations as expressed in article 2 of the Civil Practice Act (now article 2 of the Civil Practice Law and Rules) which makes all limitations except a particular specified one run from breach and not from discovery.” (Citizens Utilities v. American Locomotive, 11 N Y 2d 409, 417.) There is an exception provided by statute in cases where the gravamen of the action is grounded in fraud — that “ the time within which the action must be commenced shall be computed from the time the plaintiff * * * discovered the fraud.” (CPLR 206, subd. [c].) “The existence of a discovery provision in the fraud statute bespeaks a legislative judgment that only in fraud cases, by their very nature, were there a sufficient number of unknown wrongs to justify a departure from the general rule. Apparently the rarity of such unfortunate cases in other types of actions [where wrongs were unknown] did not outweigh the disadvantages of imposing a *605possible exception to the grant of repose to every person and industry who could be a potential defendant”. (Schwarts v. Heyden Chem. Corp., supra, p. 218.)

The gravamen of the action here is not fraud but the alleged original wrong, namely, the alleged negligence of the defendant resulting in plaintiff’s personal injuries sustained on February 15, 1960. The plaintiff does further allege that the defendant on May 10, 1960, fraudulently misrepresented that it did not own or in any way control the roadway, the defects in which were alleged to be responsible for plaintiff’s injuries and that the City of New York owned and controlled the roadway; and that such misrepresentations were made with the intent to deceive and defraud the plaintiff, knowing that the plaintiff would roly on same and not institute suit against the said defendant * * * and that if the plaintiff knew that the representations were false he would have commenced action initially against the defendant and by virtue of relying upon said representations the statute of limitations for maintaining a negligence action against the defendant herein has run.”

It appears that the alleged misrepresentations were made by the defendant with the intent of avoiding liability altogether. The plaintiff does not expressly allege that the representations were made with the intent on the part of defendant to take advantage of the Statute of Limitations which still had over two and one-half years to run. The omission of such an allegation was undoubtedly intentional, and, under the reasoning of the majority opinion, the omission is fatal to any cause of action. Furthermore, the plaintiff, in relying on the particular representations, would do so in the belief that he had no cause of action against the defendant; and this was the reason why he did not timely sue the defendant.

In any event, the alleged fraudulent concealment by a defendant of the existence of a cause of action grounded in negligence does not furnish the basis for a new and separate cause of action; nor does it revive the original alleged wrong, aggravate it or in itself cause damage. Fraudulent concealment of a cause of action, insofar as it bears upon the operation of the Statute of Limitations, would not create new substantive rights. A Statute of Limitations relates only to the remedy. (See White v. City of Brooklyn, 122 N. Y. 53, 60; Schenck v. State Line Tel. Co., 207 App. Div. 454, 457.) If we give the alleged fraud the effect claimed by the plaintiff, the result is only to remove the bar against the remedy -to continue, beyond the statutory period, the right to maintain an action to recover for plaintiff’s personal injuries claimed to have been sustained through the *606negligence of the defendant. The plaintiff will not thereby acquire a new cause of action but merely a continuance of the right to sue upon the cause grounded in negligence.

Here, “ [t]he only purpose which serves the plaintiffs in pleading the fraud is to avoid the Statute of Limitations ”. (Brick v. Cohn-Hall-Marx Co., supra, p. 264.) “ [T]he proof of fraud becomes only necessary as the fit answer to a possible defense”. (Carr v. Thompson, 87 N. Y. 160, 165.) “The subsequent concealment of such negligent act, may have aggravated the original wrong but simply as a circumstance in the chain of events leading from the original carelessness, presumably adding to the damages which resulted therefrom. The concealment alleged is not the wrong which must be made the gravamen of an ‘ action to procure a judgment on the ground of fraud ’ within Civil Practice Act, section 48 [now CPLR 206, isubd. (c)]. Glover v. National Bank of Commerce, 156 App. Div. 247, 256.” (Tulloch v. Haselo, 218 App. Div. 313, 316-317.)

The personal injuries sustained by plaintiff resulted solely from the alleged negligence of the defendant, and this is not a case where “ there would be no injury except for the fraud ”. (See Glover v. National Bank of Commerce, supra, p. 256.) If the plaintiff recovers for his personal injuries in this action, it will be because of defendant’s alleged negligence and not because of its alleged fraud.

There are occasions when fraudulent conduct on the part of a defendant may furnish a basis for estopping him from interposing the Statute of Limitations as a defense. (See Erbe v. Lincoln Rochester Trust, 13 A D 2d 211.) But this is not the theory of plaintiff’s pleading and, in any event, the plaintiff’s allegations are not sufficient to justify the application of the doctrine of equitable estoppel. The parties did not stand in any fiduciary relationship, and the defendant had the perfect right to disclaim liability on the ground of lack of responsibility for the conditions alleged to have caused plaintiff’s injuries. The plaintiff had more than ample time to ascertain the true facts, and, if he elected to rely upon defendant’s disclaimer of liability, he has only himself to blame. (Cf. Augstein v. Levey, 3 A D 2d 595, affd. 4 N Y 2d 791.)

I would reverse and grant the motion to dismiss the complaint.

Bkeitel, J. P., and Valente, J., concur with McNally, J.; Eageb, J., dissents in opinion in which Stevens, J., concurs.

Order, entered on November 24, 1964, affirmed, with $30 costs and disbursements to respondent.