Opinion
2012-07-25
Stewart SENTER, etc., et al., respondents, v. Craig GITLITZ, et al., appellants.
Dunington Bartholow & Miller, LLP, New York, N.Y. (Thomas V. Marino and Eva Adaszko of counsel), for appellants. Rosenberg Calica & Birney, LLP, Garden City, N.Y. (Ronald J. Rosenberg and Lesley A. Reardon of counsel), for respondents.
Dunington Bartholow & Miller, LLP, New York, N.Y. (Thomas V. Marino and Eva Adaszko of counsel), for appellants. Rosenberg Calica & Birney, LLP, Garden City, N.Y. (Ronald J. Rosenberg and Lesley A. Reardon of counsel), for respondents.
PETER B. SKELOS, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated September 7, 2011, as denied that branch of their motion which was for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants moved, inter alia, for summary judgment dismissing the plaintiff's breach of contract cause of action as time-barred. A breach of contract cause of action accrues, and the relevant six-year statute of limitations begins to run, at the time of the alleged breach ( seeCPLR 213 [2]; 6D Farm Corp. v. Carr, 63 A.D.3d 903, 907, 882 N.Y.S.2d 198). Here, the defendants failed to establish, prima facie, that the breach of contract cause of action, which alleged the failure to make certain dividend payments within the six-year period prior to commencement of the action, was time-barred ( seeCPLR 213[2]; 6D Farm Corp. v. Carr, 63 A.D.3d at 907, 882 N.Y.S.2d 198). Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the breach of contract cause of action as time-barred.
The defendants also failed to demonstrate, prima facie, that the cause of action alleging breach of fiduciary duty was time-barred, since the alleged acts upon which the cause of action was predicated occurred in 2009, approximately two years prior to the commencement of the present action ( seeCPLR 213[1], 214[4]; see generally Carbon Capital Mgt., LLC v. American Express Co., 88 A.D.3d 933, 932 N.Y.S.2d 488;Wiesenthal v. Wiesenthal, 40 A.D.3d 1078, 1079–1080, 838 N.Y.S.2d 581). Accordingly, the Supreme Court also properly denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging breach of fiduciary duty as time-barred.
The defendants' remaining contentions are without merit.