Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the March 13, 2013 mailing of "Constructive Notice":

Forgery Extends Statute of Limitations

The mere allegation of a forged deed in the chain of title is enough to extend the statute of limitations from six years to ten. So says the First Department in Fan-Dorf Properties, Inc. v. Classic Brownstones Unlimited, LLC, 2013 NY Slip Op 01325 (1st Dept., February 28, 2013).

The plaintiff sought to quiet title to the premises.  Record title had previously been held by Fan-Dorf. A deed purporting to transfer title to a non-existent corporation was recorded. In addition, the signatory to the deed turned out to be a fictitious individual. Eventually, record title devolved to the defendant, a bona fide purchaser. Initially, the defendant had obtained summary judgment dismissing the complaint on the basis of RPL §266. The plaintiff moved to renew and, in support thereof, submitted “an abundance of evidence ... showing ... that the [earlier] deed ... was forged.” The trial court denied the motion to renew and this appeal followed.

The panel determined that because of the forgery, RPL §266, “which applies to fraud situations that are voidable, not those which are void such as here where a forged deed is alleged ... is inapplicable. Thus, this action is governed by the 10 year statute of limitations pursuant to CPLR 212(a) rather than the 6 year statute of limitations pursuant to CPLR 213(8), requiring denial of defendant's motion to dismiss on statute of limitations grounds.”


CPLR 212(a) is the statute of limitations for “an action to recover real property or its possession.” The Fan-Dorf opinion only recites that it is an “action to quiet title to real property.” RPL §266 appears to render CPLR 213(8) (the fraud statute of limitations) inapposite in those situations to which §266 applies. Nevertheless, the judicial determination that the presence of forgery creates a special variety of fraud to which RPL §266 does not apply does not change the essential character of the cause of action. It’s still an action for fraud. Forgery, per se, is not civilly actionable. It is an instrumentality for the perpetration of fraud.  The opinion gives no rationale for invoking the statute of limitations for possessory actions when forgery is present.