Silverstein v. Empire Mutual Insurance

In an action to recover damages inter alia for alleged fraud, plaintiff appeals from an order of the Supreme Court, Queens County, dated May 10, 1971, which granted defendant’s motion to dismiss the complaint and for summary judgment. Order reversed, with $10 costs and disbursements, and motion remanded to Special Term for further proceedings in accordance with the views herein set forth: Plaintiff alleged in his amended complaint that he had been fraudulently induced into believing that defendant had taken into account appropriate factors in computing the premiums on workmen’s compensation and other insurance policies. It is claimed that knowledge of the fraud was acquired in May, 1961 and that the action was timely commenced in January, 1966. Defendant denied that the summons had ever been served and claimed that it appeared in the action voluntarily in 1968. A hearing is required to determine when plaintiff acquired knowledge of the facts constituting the alleged fraud and whether the action was commenced within six years thereafter. Rabin, P. J., Munder, Martuscello, Latham and Shapiro, JJ., concur.