Senter v. Gitlitz

Jul 25, 2012
Versions:

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 (see CPLR 213 [2]; 6D Farm Corp. v Carr, 63 AD3d 903, 907 [2009]). 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 (see CPLR 213 [2]; 6D Farm Corp. v Carr, 63 AD3d at 907). 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 (see CPLR 213 [1]; 214 [4]; see generally Carbon Capital Mgt., LLC v American Express Co., 88 AD3d 933 [2011]; Wiesenthal v Wiesenthal, 40 AD3d 1078, 1079-1080 [2007]). 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.

Skelos, J.P., Florio, Belen and Sgroi, JJ., concur.