Opinion
2002-07053
Submitted May 1, 2003.
August 11, 2003.
In a proceeding pursuant to CPLR article 77, inter alia, to remove Robert M. Davis and Mildred Arcadipane as trustees, Thomas Kornacki and Joan Kelly appeal from so much of an order of the Surrogate's Court, Westchester County (Scarpino, S.), dated February 25, 2002, as denied those branches of their respective motions which were for summary judgment on their cross claims for trustee commissions earned from March 1, 1989, to January 1, 1990, and dismissed the cross claims as barred by the statute of limitations.
Delbello Donnellan Weingarten Tartaglia Wise Wiederkehr, LLP, White Plains, N.Y. (Patrick M. Reilly of counsel), for appellants.
Orrick, Herrington Sutcliffe, LLP, New York, N.Y. (Steven J. Fink and Tara J. Myslinski of counsel), for respondent Thomas and Agnes Carvel Foundation.
Before: ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, WILLIAM D. FRIEDMANN, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The appellants' original answers did not give sufficient notice of the transactions or occurrences which provide the basis of the cross claims asserted in their amended answer, as required by CPLR 203(f), in order to avoid dismissal based upon the expiration of the applicable statute of limitations (see MacDonald v. Windfield Bus Papers, 270 A.D.2d 399; Boccone v. Island Fed. Mtge. Corp., 261 A.D.2d 350; Coleman, Grasso and Zasada Appraisals v. Coleman, 246 A.D.2d 893, 894; Padua v. Falow, 230 A.D.2d 834). The vague demands in the "wherefore clauses" of the original answers for "such compensation to which this Court believes [the appellants to be entitled]" was insufficient to give notice of the present cross claims for payment of commissions owed (see Wilensky v. JRB Mktg. Opinion Research, 137 A.D.2d 520; 5 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 3017.02).
FLORIO, J.P., FEUERSTEIN, FRIEDMANN and CRANE, JJ., concur.