Opinion
02-18-2015
Nikolaos KANTERAKIS, appellant-respondent, v. Emily KANTERAKIS, defendant, N. Richard Wool, et al., respondents-appellants, Bernard J. Duffy, respondent.
Nassau/Suffolk Law Services Committee, Inc., Hempstead, N.Y. (Rosina Caputo of counsel), for appellant-respondent. Lynn, Gartner, Dunne & Covello, LLP, Mineola, N.Y. (Kenneth L. Gartner, Joseph Covello, and John W. Dunne of counsel), for respondents-appellants. Jaspan Schlesinger, LLP, Garden City, N.Y. (Christopher E. Vatter and Antonia M. Donohue of counsel), for respondent.
Nassau/Suffolk Law Services Committee, Inc., Hempstead, N.Y. (Rosina Caputo of counsel), for appellant-respondent.
Lynn, Gartner, Dunne & Covello, LLP, Mineola, N.Y. (Kenneth L. Gartner, Joseph Covello, and John W. Dunne of counsel), for respondents-appellants.
Jaspan Schlesinger, LLP, Garden City, N.Y. (Christopher E. Vatter and Antonia M. Donohue of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
Opinion In an action, inter alia, to recover damages for fraud and breach of fiduciary duty, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (K. Murphy, J.), dated February 4, 2013, as granted the motion of the defendant Bernard J. Duffy pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him, and the defendants N. Richard Wool, Alissa Joy Wool, The Wool Law Group, PLLC, and The Law Offices of N. Richard Wool cross-appeal, as limited by their brief, from so much of the same order as denied their motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them, and granted the motion of the defendant Bernard J. Duffy pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him.
ORDERED that the appeal by the defendants N. Richard Wool, Alissa Joy Wool, The Wool Law Group, PLLC, and The Law Offices of N. Richard Wool from so much of the order as granted the motion of the defendant Bernard J. Duffy pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him is dismissed, as those defendants are not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,
ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.
The Supreme Court properly granted the motion of the defendant Bernard J. Duffy pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him. Contrary to Duffy's contention, he did not show that the causes of action alleging fraud and aiding and abetting fraud were time-barred under the circumstances presented (see CPLR 213[8] ; Robinson v. Day, 103 A.D.3d 584, 585, 960 N.Y.S.2d 397 ). However, the Supreme Court properly granted Duffy's motion based on the plaintiff's failure to state a viable cause of action against him. With respect to the fraud causes of action, the complaint did not adequately allege that Duffy made a knowingly false representation as to a material fact with the intention of inducing the plaintiff to rely on that representation (see CPLR 3016[b] ; Brualdi v. IBERIA, Lineas Aereas de España, S.A., 79 A.D.3d 959, 960, 913 N.Y.S.2d 753 ; cf.
Nationscredit Fin. Servs. Corp. v. Turcios, 55 A.D.3d 806, 807–808, 866 N.Y.S.2d 690 ). The complaint also failed to plead, with the requisite specificity, the elements of the cause of action alleging aiding and abetting fraud asserted against Duffy, including the element of “actual knowledge, and substantial assistance” by Duffy in the underlying alleged fraudulent scheme by the other defendants (Goel v. Ramachandran, 111 A.D.3d 783, 793, 975 N.Y.S.2d 428 ; see CPLR 3016[b] ; CDR Creances S.A.S. v. First Hotels & Resorts Invs., Inc., 101 A.D.3d 485, 486–487, 956 N.Y.S.2d 16 ). Accordingly, the Supreme Court properly granted Duffy's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him.
Contrary to the contention of the defendants N. Richard Wool, Alissa Joy Wool, The Wool Law Group, PLLC, and the Law Offices of N. Richard Wool, the Supreme Court properly denied that branch of their motion which was to dismiss the complaint insofar as asserted against them as time-barred. As the plaintiff correctly asserts, the fraud causes of action against those defendants did not accrue until October 4, 2004, the date of the first allegedly fraudulent transaction in which those defendants were involved (see New York City Tr. Auth. v. Morris J. Eisen, P.C., 276 A.D.2d 78, 85, 715 N.Y.S.2d 232 ). The fraud causes of action were timely interposed within six years of that accrual date (see CPLR 213[8] ). Further, under the circumstances presented here, the causes of action alleging breach of fiduciary duty and aiding and abetting breach of fiduciary duty are governed by the six-year statute of limitations for fraud, as those causes of action are based on fraud (see Oxbow Calcining USA Inc. v. American Indus. Partners, 96 A.D.3d 646, 652, 948 N.Y.S.2d 24 ). Those causes of action also accrued no earlier than October 4, 2004 (see New York City Tr. Auth. v. Morris J. Eisen, P.C., 276 A.D.2d at 85, 715 N.Y.S.2d 232 ), and were timely interposed within six years of that date.