Stewart v. BergerStewart v. Berger
In an action, inter alia, to recover damages for breach of fiduciary duty, breach of contract, and fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), dated January 7, 2014, as denied those branches of his motion which were to vacate so much of an order of the same court (Baynes, J.), dated June 21, 2012, as granted those branches of the defendants’ motion which were pursuant to
The plaintiff commenced this action against his former attorneys to recover damages for, among other things, breach of fiduciary duty, breach of contract, and fraud. The defendants subsequently moved pursuant to
The plaintiff thereafter moved to vacate the June order. In the order appealed from, the Supreme Court accepted the plaintiff‘s explanation for his default, which amounted to law office failure. However, the Supreme Court further determined that the plaintiff had failed to demonstrate a potentially meritorious opposition to those branches of the defendants’ motion which were to dismiss the second, third, and fourth causes of action on the ground that they are time-barred, and so much of the complaint as sought punitive damages. Accordingly, the Supreme Court denied those branches of the plaintiff‘s motion which were to vacate so much of the June order as directed the dismissal of the second, third, and fourth causes of action, and so much of the complaint as sought punitive damages. The plaintiff appeals from those portions of the order, and we modify.
“To vacate an order made upon a plaintiff‘s failure to oppose a motion, the plaintiff is required to demonstrate both a reasonable
Here, the defendants do not contend, as an alternative ground for affirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]), that the plaintiff‘s excuse of law office failure was inadequate to excuse his default in opposing the defendants’ motion (see
The second cause of action sought to recover damages for breach of fiduciary duty. Contrary to the plaintiff‘s contention, the Supreme Court properly determined that the three-year limitations period of
The Supreme Court also properly declined to vacate so much of the June order as directed the dismissal of so much of the complaint as sought punitive damages. Contrary to the plaintiff‘s contention, the complaint failed to set forth any facts or allegations to support his contention that the defendants committed a fraud “evincing a high degree of moral turpitude, and demonstrating such wanton dishonesty as to imply a criminal indifference to civil obligations . . . where the conduct [is] aimed at the public generally” (Reads Co., LLC v Katz, 72 AD3d 1054, 1057 [2010] [internal quotation marks omitted];
However, the Supreme Court erred in declining to vacate so much of the June order as directed the dismissal of the third cause of action, alleging breach of contract, as time-barred. The plaintiff proffered a meritorious opposition to this branch of the defendants’ motion. The third cause of action alleged that the defendants charged the plaintiff excessive fees in violation of the express terms of the parties’ retainer agreement, stating a contract claim subject to the six-year limitations period of
Similarly, the Supreme Court erred in declining to vacate so much of the June order as directed the dismissal of the fourth cause of action, alleging fraud, as time-barred. The plaintiff proffered a meritorious opposition to this branch of the defendants’ motion, demonstrating that this cause of action did not arise from the same facts as the legal malpractice cause of action, and that the complaint alleged distinct damages. Thus, the six-year limitations period of
In light of the foregoing, we remit this matter to the Supreme Court, Kings County, for a determination, on the merits, of those branches of the defendants’ motion which were pursuant to