Herman v. Depinies

Order, Supreme Court, New York County (Edward Lehner, J.), entered January 20, 2000, which, in an action arising out of defendant’s alleged theft of plaintiffs mail, granted defendant’s motion to dismiss the complaint as time-barred, unanimously affirmed, without costs.

The action is barred by the three-year limitations period applicable to causes of action for conversion (CPLR 214 [3]; see, Powers Mercantile Corp. v Feinberg, 109 AD2d 117, 121, affd for reasons stated 67 NY2d 981), which began to run at the time of the alleged theft even if plaintiff was then unaware of it (see, Guggenheim Found. v Lubell, 77 NY2d 311, 318). Nor can defendant be estopped from asserting the Statute of Limitations absent an allegation that he “made an actual misrepresentation or committed some other affirmative wrongdoing” that induced plaintiff to delay bringing the action in timely manner (Powers Mercantile Corp. v Feinberg, supra, at 122; compare, e.g., Simcuski v Saeli, 44 NY2d 442, 448; Matter of Spewack, 203 AD2d 133). Plaintiff does not make such an allegation. Concur — Williams, J. P., Tom, Lerner, Andrias and Friedman, JJ.