Newgarden v. Theoharidou

Feb 2, 1998
Versions:247 A.D.2d 367
667 N.Y.S.2d 921
1998 N.Y. App. Div. LEXIS 849

In an action to recover for rent overcharges, the plaintiff appeals from an order of the Supreme Court, Queens County (Dye, J.), dated June 18, 1996, which denied her motion to stay the action pending the determination of a proceeding in the Civil Court, New York County, and which granted the defendants’ cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly determined that the plaintiff’s *368complaint was time-barred by the four-year Statute of Limitations applicable to rent overcharge claims (see, CPLR 213-a). The gravamen of the plaintiffs complaint is for rent overcharges and she may not escape the limitations period set forth in the statute by couching it in terms of fraud (see, State of New York v Cortelle Corp., 38 NY2d 83, 86; New York Seven-Up Bottling Co. v Dow Chem. Co., 96 AD2d 1051, 1053, affd 61 NY2d 828). The plaintiffs contention, raised for the first time on appeal, that the Supreme Court should have granted res judicata status to a Civil Court order issued while the motion and cross motion were sub judice is not properly before this Court.

Sullivan, J. P., Pizzuto, Santucci and Florio, JJ., concur.