DiMaggio v. DiMaggio

In an action, inter alia, to recover damages for fraud, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Garson, J.), dated October 12, 1999, as denied that branch of his motion which was to dismiss the complaint as time-barred pursuant to CPLR 3211 (a) (5).

Ordered that the order is affirmed insofar as appealed from, with costs.

*193The Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the complaint as time-barred, as there are factual issues as to when the plaintiff discovered or should have discovered the alleged wrongdoing (see, Gingold v Beekman, 183 AD2d 870; Azoy v Fowler, 57 AD2d 541). Bracken, J. P., Santucci, Altman and Florio, JJ., concur.