Opinion
2013-04-3
In the Matter of Ioannis HILETZARIS, also known as John Hiletaris, deceased. Kathy Liosis, respondent; Nicholas Hiletzaris, appellant.
Crowley & Kaufman, P.C., Elmhurst, N.Y. (Scott G. Kaufman of counsel), and Seltzer Sussman Habermann & Heitner, LLP, Jericho, N.Y. (Brian R. Heitner of counsel), for appellant (one brief filed). Constantinidis & Associates, P.C., Long Island City, N.Y. (Gus John Constantinidis and Patrick J. Hackett of counsel), for respondent.
Crowley & Kaufman, P.C., Elmhurst, N.Y. (Scott G. Kaufman of counsel), and Seltzer Sussman Habermann & Heitner, LLP, Jericho, N.Y. (Brian R. Heitner of counsel), for appellant (one brief filed). Constantinidis & Associates, P.C., Long Island City, N.Y. (Gus John Constantinidis and Patrick J. Hackett of counsel), for respondent.
, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
In a probate proceeding in which Kathy Liosis, the administrator of the estate of Ioannis Hiletzaris, also known as John Hiletzaris, petitioned pursuant to SCPA 2205 to compel an accounting, Nicholas Hiletzaris appeals from an order of the Surrogate's Court, Queens County (Kelly, S.), dated September 8, 2011, which denied his motion for summary judgment dismissing the proceeding on the ground that the proceeding is barred by the statute of limitations and the doctrine of laches.
ORDERED that the order is affirmed, with costs.
Ioannis Hiletzaris, also known as John Hiletzaris (hereinafter the decedent), died on April 17, 2004. In September 2010, the petitioner, as administrator of the decedent's estate, commenced this proceeding pursuant to SCPA 2205 to compel Nicholas Hiletzaris (hereinafter Nicholas) to account for his transactions and dealings as the decedent's attorney in fact pursuant to a durable power of attorney executed by the decedent in favor of Nicholas on November 16, 1998.
The Surrogate's Court properly denied Nicholas's motion for summary judgment dismissing the proceeding. A proceeding to compel a fiduciary to account is governed by the six-year statute of limitations set forth in CPLR 213(1) ( see Matter of Barabash, 31 N.Y.2d 76, 80, 334 N.Y.S.2d 890, 286 N.E.2d 268;Matter of Sbuttoni, 16 A.D.3d 693, 694, 792 N.Y.S.2d 187;Matter of Meyer, 303 A.D.2d 682, 683, 757 N.Y.S.2d 98). Here, while the fiduciary relationship ended upon the decedent's death on April 17, 2004, more than six years prior to the commencement of this proceeding ( seeGeneral Obligations Law § 5–1511[a] ), the evidence submitted by Nicholas raised triable issues of fact as to whether Nicholas's alleged misrepresentations in his 2009 accounting of the estate of the decedent's father served to toll the statute of limitations ( see Tydings v. Greenfield, Stein & Senior, LLP, 11 N.Y.3d 195, 201, 868 N.Y.S.2d 563, 897 N.E.2d 1044;Spallholz v. Sheldon, 216 N.Y. 205, 209, 110 N.E. 431;see also Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 491, 836 N.Y.S.2d 509, 868 N.E.2d 189). We also reject Nicholas's contention that the petition was barred by the doctrine of laches, as Nicholas failed to establish prima facie the requisite element of prejudice ( see Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 816, 766 N.Y.S.2d 654, 798 N.E.2d 1047;cert. denied sub nom. Pataki v. Saratoga County Chamber of Commerce, Inc., 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430;Matter of Barabash, 31 N.Y.2d at 82, 334 N.Y.S.2d 890, 286 N.E.2d 268;Markell v. Markell, 91 A.D.3d 832, 834, 938 N.Y.S.2d 117;Skrodelis v. Norbergs, 272 A.D.2d 316, 316, 707 N.Y.S.2d 197).