SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

160 

CA 15-01971 

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. 

 

JIMMIE LARKE, III, AND JUSTIN LARKE, 

PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

TINA MCCARY MOORE, INDIVIDUALLY AND AS EXECUTRIX 

OF THE ESTATE OF MELVIN E. MOORE, DECEASED, ING 

RELIASTAR LIFE INSURANCE COMPANY, AND ING U.S. INC., 

ALSO KNOWN AS VOGA FINANCIAL, INC., 

DEFENDANTS-RESPONDENTS. 

(APPEAL NO. 1.) 

 

JOY A. KENDRICK, BUFFALO, FOR PLAINTIFFS-APPELLANTS. 

LITCHFIELD CAVO, LLP, NEW YORK CITY (MICHAEL K. DVORKIN OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS ING RELIASTAR LIFE INSURANCE COMPANY, AND

ING U.S. INC., ALSO KNOWN AS VOGA FINANCIAL, INC. 

 

Appeal from an amended order of the Supreme Court, Erie County

(Shirley Troutman, J.), entered January 20, 2015. The amended order,

among other things, granted the motion to dismiss of defendant Tina

McCary Moore, individually and as executrix of the estate of Melvin E.

Moore, deceased, and dismissed the complaint against all defendants. 

It is hereby ORDERED that the amended order so appealed from is

unanimously modified on the law by reinstating the complaint against

defendant ReliaStar Life Insurance Company, incorrectly sued herein as

ING ReliaStar Life Insurance Company, and defendant VOYA Financial,

Inc., incorrectly sued herein as ING U.S. Inc., also known as Voga

Financial, Inc., and as modified the amended order is affirmed without

costs. 

Memorandum: In appeal No. 1, plaintiffs appeal from an amended

order that, among other things, granted the motion to dismiss of

defendant Tina McCary Moore, individually and as executrix of the

estate of Melvin E. Moore (decedent), and dismissed the complaint

against all defendants. In appeal No. 2, plaintiffs appeal from an

amended order denying their motion for leave to renew and/or reargue

their opposition to Moore’s motion to dismiss. 

As a preliminary matter we note that, insofar as the amended

order in appeal No. 2 denied the motion for leave to reargue, it is

not appealable, and we therefore dismiss the appeal to that extent on

that ground (see Gaiter v City of Buffalo Bd. of Educ., 142 AD3d 1349,
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CA 15-01971 

1350; Indus PVR LLC v MAA-Sharda, Inc., 140 AD3d 1666, 1667, lv

dismissed in part and denied in part 28 NY3d 1059). With respect to

that part of plaintiffs’ motion seeking leave to renew, we affirm the

amended order in appeal No. 2. A motion for leave to renew “shall be

based upon new facts not offered on the prior motion that would change

the prior determination” and “shall contain reasonable justification

for the failure to present such facts on the prior motion” (CPLR 2221

[e] [2], [3]; see Doe v North Tonawanda Cent. Sch. Dist., 91 AD3d

1283, 1284). Here, Supreme Court properly determined that plaintiffs

“ ‘failed to offer a valid excuse for failing to submit the new

material’ ” in opposition to Moore’s original motion to dismiss (Jones

v City of Buffalo Sch. Dist., 94 AD3d 1479, 1479; see Linden v

Moskowitz, 294 AD2d 114, 116, lv denied 99 NY2d 505).

With respect to appeal No. 1, we conclude that the court properly

dismissed the complaint as against Moore. It is well established that

“a fraud-based action must be commenced within six years of the fraud

or within two years from the time the plaintiff[s] discovered the

fraud or ‘could with reasonable diligence have discovered it’ ”

(Sargiss v Magarelli, 12 NY3d 527, 532, quoting CPLR 213 [8]; see also

CPLR 203 [g]). In their complaint, plaintiffs alleged that, during

his life, decedent, plaintiffs’ uncle, had named them as beneficiaries

on a life insurance policy issued by defendant ReliaStar Life

Insurance Company (RLIC), incorrectly sued herein as ING ReliaStar

Life Insurance Company. Plaintiffs further alleged that “through

fraud, undue influence, and/or coercion shortly before [decedent]

passed away on April 21, 2008, while he was physically and mentally

incapacitated as a result of terminal cancer[,]” Moore “procured” a

change in the policy, i.e., she became the beneficiary thereof,

replacing plaintiffs. Thus, according to plaintiffs’ complaint, any

alleged fraud by Moore occurred prior to decedent’s death on April 21,

2008. Plaintiffs, however, did not commence the action until six

years later, on April 21, 2014, i.e., more than six years from the

date of the alleged fraud. Plaintiffs were therefore required to show

that their fraud cause of action was timely pursuant to the two-year

discovery exception (see Brooks v AXA Advisors, LLC [appeal No. 2],

104 AD3d 1178, 1180, lv denied 21 NY3d 858; Vilsack v Meyer, 96 AD3d

827, 828). Contrary to plaintiffs’ contention, the “record supports

the court’s determination that plaintiffs possessed knowledge of facts

from which they reasonably could have discovered the alleged fraud

soon after it occurred, and in any event more than two years prior to

the commencement of the action” (Brooks, 104 AD3d at 1180; see

Giarratano v Silver, 46 AD3d 1053, 1056; Prestandrea v Stein, 262 AD2d

621, 622-623).

Plaintiffs nevertheless contend that, because they rejected

Moore’s answer and treated it as a nullity (see CPLR 3022), they were

entitled to a default judgment against Moore and Moore’s motion to

dismiss pursuant to CPLR 3211 (a) (5) was precluded by CPLR 3211 (e). 

We reject that contention. Moore timely served an answer and

counterclaim in which she raised the affirmative defense that

plaintiffs did not commence their action within the applicable statute

of limitations. Although Moore’s answer did not contain the requisite
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CA 15-01971 

verification (see CPLR 3020 [b] [1]), plaintiffs in this case

“proceeded on the theory that [they] had to prove [their] claim[s] as

if [they] stood controverted. [They] did not seek to proceed as if

upon a default” (Matter of McDonald [Luppino], 100 AD3d 1349, 1350

[internal quotation marks omitted]). Furthermore, plaintiffs waived

any objection to the lack of verification by waiting nearly two months

to reject the answer (see Rozz v Law Offs. of Saul Kobrick, P.C., 134

AD3d 920, 921-922; Cherubin Antiques, Inc. v Matiash, 106 AD3d 861,

862; McDonald, 100 AD3d at 1350). We therefore conclude that

plaintiffs failed to act with “due diligence” as required by CPLR

3022.

We agree with plaintiffs, however, that the court erred in sua

sponte dismissing the complaint against RLIC and its parent company,

defendant VOYA Financial, Inc. (VOYA), incorrectly sued herein as ING

U.S. Inc., also known as Voga Financial, Inc. We therefore modify the

amended order accordingly. “[I]n the absence of a CPLR 3211 (a)

motion by [RLIC and VOYA], the court was without authority to search

the record and dismiss any claims against [them]” (Torrance Constr.,

Inc. v Jaques, 127 AD3d 1261, 1263; see Mann v Rusk, 14 AD3d 909, 910;

see also Mercedes-Benz Credit Corp. v Dintino, 198 AD2d 901, 902).

We have reviewed plaintiffs’ remaining contentions and conclude

that they are without merit.

Entered: May 5, 2017 Frances E. Cafarell

Clerk of the Court