Antoniu v. AhernAntoniu v. Ahern
Ordеr, Supreme Court, New York County (Edith Miller, J.), entered July 30, 1986, which dismissed plaintiffs first cause of actiоn against the respondent law firm on the ground that the action was barred by the three-year Statute of Limitations for negligence, and dismissed the second cause of action against the respondent law firm on the ground that the complaint failed to state a cause of action for breach of contract, reversed, on the law, with costs, and the motion to dismiss the causes of action is denied.
As relevant to the causes of action against the partners of the respondent law firm, the complaint dated October 10, 1985 sets forth the following legally significant allegations. In the summer of 1978 plaintiff retained Cornelius M. Ahearn and his then law firm, Riposanu Jоyce Ahearn Aballi & Diaz-Cruz (the Riposanu firm), to represent him on several matters, including an annulment action then pending. At the suggestion of Ahearn, plaintiff transferred to him the sum of $240,000 on the explicit understanding that the funds were to be placed in interest-beаring trust accounts. The funds were thereafter placed in a Swiss bank in the name of the Finchley Corporation. It is alleged that Ahearn and his then firm did not keep plaintiffs funds sеparate and earmarked as trust funds, but instead commingled and treated the funds as their own, and that the defendant Ahearn misrepresented material facts concerning transactions involving plaintiffs funds with the intent of defrauding plaintiff.
At some time in 1981 or 1982, Ahearn lеft the Riposanu firm and joined with new partners to form the firm of Sargent,
The complaint further alleges that on July 27, 1983, plaintiffs newly retained attorney wrote to Ahеarn, informing Ahearn that he was dismissed as plaintiffs attorney and requesting a return of plaintiffs funds, and the demand was renewed in a letter dated September 10, 1983. Defendant Ahearn claimed that neither he nor his firm was in possession of any moneys or property belonging to plaintiff, and none of plaintiff’s funds or property was in fact returned to him.
The Riposanu firm moved pursuant to
As to the second cause of action alleging a breach of contract, we believe the allegations set forth in that cause of action, considered together with relevant allegations in the complaint, are legally sufficient to assert an action for failure to exercise due carе in the performance of a contract.
As to the first cause of action, defendants’ motion is based on the claim that it is an action for negligence, and that Ahearn’s separation from the Riposanu firm in 1981 or early 1982, more than three years before the commencement of this action, requires the cause of action to be dismissed as barred by the three-year Statute of Limitations. Preliminarily, we note that the allegations in this cause of action sufficiently set forth a clаim for fraud as to which the applicable period of limitations is six years (
Even if considered as a cause of action for negligence only, we are not persuaded that the action would be dismissible as barred by the three-year Statute of Limitations applicable to such an action. Under the facts set forth in the complaint, the "continuous treatment” rule would appear applicable to defer the running of the Statute of Limitations with regard to any
Kupferman, J., dissents and would affirm.