689 N.Y.S.2d 721 | N.Y. App. Div. | 1999
OPINION OF THE COURT
Plaintiffs are the adoptive parents of Michelle BB., Rachel BB. and Christopher BB., three of six children who have been placed with plaintiffs by defendant Cardinal McCloskey School and Home for Children. Alleging that Michelle is “a child of molestation” and that she has sexually abused Rachel and Christopher, plaintiffs commenced this action against Cardinal McCloskey on October 22, 1996 to recover for its alleged fraudulent misrepresentation and intentional concealment of Michelle’s prior sexual abuse and against defendant Tina Privitera, a clinical social worker who worked with plaintiffs at Cardinal McCloskey’s behest, alleging her negligence in failing to warn plaintiffs of the danger Michelle posed to other children. Following joinder of issue and some discovery, defendants separately moved for summary judgment dismissing the complaint. Supreme Court granted both defendants’ motions and dismissed the complaint upon the ground that plaintiffs had failed to make a sufficient evidentiary showing in support of their causes of action and also upon the ground that the action is barred by the Statute of Limitations. Plaintiffs appeal.
In our view, Supreme Court erred in dismissing the complaint against Cardinal McCloskey. The essential elements of a cause of action for fraud are (1) the defendant’s misrepresentation or concealment of a material fact, (2) that such representation was false and known to be false, (3) the defendant’s intention to deceive and induce the plaintiff to act upon such representation, (4) the plaintiff’s reliance upon the representation, and (5) damages (see, New York Univ. v Continental Ins. Co., 87 NY2d 308, 318; Flora v Kingsbridge Homes, 214 AD2d 834, 836; see, Juman v Louise Wise Servs., 174 Misc 2d 49, 56, mod 254 AD2d 72).
Notably, plaintiffs presented deposition testimony of Cardinal McCloskey’s Head of Administration in which she acknowledged that, during an earlier placement, Michelle was taken to a mental health clinic and the clinician made a finding that she had been sexually abused. That finding was reported to Cardinal McCloskey but not divulged to plaintiffs, despite the
In our view, Supreme Court also erred in its determination that the action against Cardinal McCloskey was untimely commenced as a matter of law. An action based upon fraud must be commenced within six years from the time of the fraud (see, CPLR 213 [8]) or within two years from the time the fraud was, or with reasonable diligence could have been, discovered, whichever is longer (see, CPLR 203 [g]). Although it appears that plaintiffs did not commence the action within six years of the time of the fraud, the record supports a finding that plaintiffs first discovered or reasonably should have discovered the alleged fraud within two years preceding commencement of the action, or after October 22, 1994 (see, CPLR 203 [g]; Juman v Louise Wise Servs., 174 Misc 2d 49, 54, supra).
“ ‘Under New York law the issue of when a plaintiff, acting with reasonable diligence, could have discovered an alleged fraud turns upon whether the plaintiff possessed knowledge of facts from which he [or she] could reasonably have inferred the
Based upon the record before us, it does not conclusively appear that plaintiffs were, prior to October 22, 1994, possessed of facts from which fraud could have been inferred. Although plaintiffs may have suspected that Michelle was sexually abused as far back as January 1989 and in fact revealed those suspicions to Privitera in 1993, Privitera could not confirm that Michelle had been sexually abused in the past and there does not appear to be any evidence, prior to October 22, 1994, indicating that Michelle was in fact sexually abused. As such, it cannot be said as a matter of law that plaintiffs were alerted to Cardinal McCloskey’s concealment of Michelle’s past sexual abuse before October 22, 1994, leaving a question of fact as to whether plaintiffs should have discovered with reasonable diligence the alleged fraud prior to that date (see, K&E Trading & Shipping v Radmar Trading Corp., 174 AD2d 346, 348, supra).
Finally, we conclude that the cause of action for punitive damages and all causes of action against Privitera were properly dismissed. In order to recover punitive damages, plaintiffs must demonstrate that the wrong complained of rose to a level of “ ‘such wanton dishonesty as to imply a criminal indifference to civil obligations’ ” (Rocanova v Equitable Life Assur. Socy., 83 NY2d 603, 614, quoting Walker v Sheldon, 10 NY2d 401, 405). Based upon the evidence, there is no reasonable basis for a finding that Cardinal McCloskey’s failure to disclose Michelle’s past sexual abuse rose to such a level (see, Rocanova v Equitable Life Assur. Socy., supra, at 614). As for Privitera, the record contains no evidence that she was aware that Michelle may have been the victim of any sexual abuse prior to her consultations with plaintiffs or that she conspired with Cardinal McCloskey to conceal such information. At most,
Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur.
Ordered that the order is modified, on the law, with costs to plaintiffs against defendant Cardinal McCloskey School and Home for Children, by reversing so much thereof as granted the motion of defendant Cardinal McCloskey School and Home for Children for summary judgment dismissing the first four causes of action against said defendant to the extent that they seek pecuniary damages; said motion denied; and, as so modified, affirmed.