Colon v Banco Popular N. Am.

Colon v Banco Popular N. Am. 2009 NY Slip Op 01345 [59 AD3d 300] February 24, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 1, 2009

Francisco Colon et al., Appellants,
v
Banco Popular North America, Respondent.

—[*1] Edwin Peralta-Millan, New York, for appellants.

Jeffrey F. Cohen, Bronx, for respondent.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered November 20, 2007, which, in an action to recover for emotional injuries sustained when plaintiff Francisco Colon was arrested, incarcerated and prosecuted allegedly due to defendant's negligent misrepresentations, granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Even were we to find that plaintiffs sufficiently pleaded a cause of action for negligent misrepresentation, we would find the claim untimely. Plaintiffs acknowledge that the point of injury occurred when he was arrested and incarcerated on December 1, 2003, and accordingly, the action, commenced in April 2007, is barred by the applicable three-year statute of limitations (CPLR 214). Contrary to plaintiffs' contention, the action is not governed by a six-year limitations period (CPLR 213), since they neither alleged fraud nor constructive fraud against defendant (see e.g. Fandy Corp. v Lung-Fong Chen, 262 AD2d 352 [1999]). Concur—Gonzalez, J.P., Sweeny, Renwick and Freedman, JJ.