Opinion
06-30-2016
Eric YARBRO, et al., Plaintiffs–Appellants, v. WELLS FARGO BANK, N.A., et al., Defendants–Respondents, Dominic Sarna, et al., Defendants.
Law Office of Robert Jay Gumenick, P.C., New York (Robert J. Gumenick of counsel), for appellants. Hogan Lovells U.S. LLP, New York (Carol A. Wojtowicz of counsel), for Wells Fargo Bank, N.A. and U.S. Bank National Association, respondents. Dorf & Nelson LLP, Rye (Jonathan B. Nelson of counsel), for Visions Federal Credit Union, respondent. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Julie L. Mercer of counsel), for Cambridge Abstract, Ltd., respondent. Braverman Greenspun, P.C., New York (Drew Pakett of counsel), for Marco Materassi P.C., Marco Materassi and Mandeep Kaur, respondents.
Law Office of Robert Jay Gumenick, P.C., New York (Robert J. Gumenick of counsel), for appellants.
Hogan Lovells U.S. LLP, New York (Carol A. Wojtowicz of counsel), for Wells Fargo Bank, N.A. and U.S. Bank National Association, respondents.
Dorf & Nelson LLP, Rye (Jonathan B. Nelson of counsel), for Visions Federal Credit Union, respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Julie L. Mercer of counsel), for Cambridge Abstract, Ltd., respondent.
Braverman Greenspun, P.C., New York (Drew Pakett of counsel), for Marco Materassi P.C., Marco Materassi and Mandeep Kaur, respondents.
Appeal from order, Supreme Court, New York County (Manuel J. Mendez, J.), entered November 7, 2014, deemed appeal from judgment, same court and Justice, entered December 9, 2014, dismissing the complaint as against Cambridge Abstract, Ltd. (CPLR 5501[c] ), and, so considered, said judgment unanimously affirmed, without costs. Orders, Supreme Court, New York County (Manuel J. Mendez, J.), entered February 5, 2015, and February 6, 2015, which, to the extent appealed from as limited by the briefs, granted defendants Wells Fargo Bank's, Visions Federal Credit Union's, and Marco Materassi P.C., Marco Materassi, Esq., and Mandeep Kaur, Esq.'s motions to dismiss the breach of contract, unjust enrichment, and negligence causes of action as against them as time barred, unanimously affirmed, without costs.
Contrary to plaintiffs' contention, the breach of contract causes of action accrued at the time of the breach, not on the date of discovery of the breach (Ely–Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 599 N.Y.S.2d 501, 615 N.E.2d 985 [1993] ), and the six-year statute of limitations applicable thereto had run before plaintiffs commenced this action. The negligence claims, which allege a failure to properly record certain mortgages, are governed by CPLR 214(4), a three-year statute of limitations (see First Am. Tit. Ins. Co. of New York v. Fiserve Fulfillment Servs., Inc., 2008 WL 282019, *2, 2008 U.S. Dist. LEXIS 7344, *6 [S.D.N.Y.2008] ). “[A]ccrual time is measured from the day [the] actionable injury occur[red], ‘even [though] the aggrieved party [was] then ignorant of the wrong or injury’ ” (Nothnagle Home Sec. Corp. v. Bruckner, Tillet, Rossi, Cahill & Assoc., 125 A.D.3d 1503, 1504, 3 N.Y.S.3d 870 [4th Dept.2015], lv. denied 25 N.Y.3d 909, 2015 WL 3555549 [2015] [quoting McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ). The mortgages at issue were recorded in 2007; this action was not commenced until 2014.
Plaintiffs' attempt to extend the statute of limitations by equitable tolling is unsupported by any non-conclusory allegation that they were “actively misled” by any of the defendants (see Shared Communications Servs. of ESR, Inc. v. Goldman, Sachs & Co., 38 A.D.3d 325, 325, 832 N.Y.S.2d 32 [1st Dept.2007] [internal quotation marks omitted] ). Nor do plaintiffs allege any facts that would support their “continued representation” claim.
The legal malpractice claim, which accrued at the time the mortgages were recorded after closing (Benedict v. Estate of Noumair, 289 A.D.2d 71, 733 N.Y.S.2d 867 [1st Dept.2001] ) and is governed by a three-year statute of limitations (CPLR 214[6] ), and the unjust enrichment claim, which accrued “upon the occurrence of the alleged wrongful act giving rise to restitution” (Kaufman v. Cohen, 307 A.D.2d 113, 127, 760 N.Y.S.2d 157 [1st Dept.2003] ) and is governed by a six-year statute of limitations (CPLR 213[1] ); see also Maya NY, LLC v. Hagler, 106 A.D.3d 583, 585, 965 N.Y.S.2d 475 [1st Dept.2013] ), are time barred.
MAZZARELLI, J.P., RENWICK, MOSKOWITZ, GISCHE, GESMER, JJ., concur.