Opinion
2017–13465 Index No. 53427/17
04-24-2019
NM, et al., Appellants, v. ESTATE OF Edmund C. GRAINGER, Jr., Respondent.
Calhoun & Lawrence, LLP, White Plains, N.Y. (Clinton W. Calhoun III of counsel), for appellants. McCullough, Goldberger & Staudt, LLP, White Plains, N.Y. (Patricia W. Gurahian of counsel), for respondent.
Calhoun & Lawrence, LLP, White Plains, N.Y. (Clinton W. Calhoun III of counsel), for appellants.
McCullough, Goldberger & Staudt, LLP, White Plains, N.Y. (Patricia W. Gurahian of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for breach of fiduciary duty and negligence, the plaintiffs appeal from an order of the Supreme Court, Westchester County (William J. Giacomo, J.), dated October 12, 2017. The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff NM is a beneficiary of an irrevocable trust established by his grandparents. The plaintiffs commenced this action on March 16, 2017, to recover damages for breach of fiduciary duty and negligence arising from the defendant's decedent's alleged mismanagement of the trust assets during his tenure as trustee. The defendant moved, inter alia, to dismiss the complaint insofar as asserted by the plaintiffs Robert Marich and Marie Silverman Marich for lack of standing, and pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. By order dated October 12, 2017, the Supreme Court, among other things, granted the defendant's motion. The plaintiffs appeal from so much of the order as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
We agree with the Supreme Court's grant of that branch of the defendant's motion which was to dismiss the complaint as time-barred. "In moving to dismiss a complaint pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a moving defendant must establish, prima facie, that the time within which to commence the action has expired" ( Franklin v. Hafftka, 140 A.D.3d 922, 924, 35 N.Y.S.3d 142 ; see Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193, 197, 47 N.Y.S.3d 80 ). If the defendant makes this showing, "[t]he burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period" ( Franklin v. Hafftka, 140 A.D.3d at 924, 35 N.Y.S.3d 142 ; see Shah v. Exxis, Inc., 138 A.D.3d 970, 971, 31 N.Y.S.3d 512 ).
In this case, the defendant met its prima facie burden of demonstrating that the action is time-barred. It is undisputed that the applicable limitations period is three years (see IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 139, 879 N.Y.S.2d 355, 907 N.E.2d 268 ; DiRaimondo v. Calhoun, 131 A.D.3d 1194, 1195, 17 N.Y.S.3d 722 ; Loeuis v. Grushin, 126 A.D.3d 761, 764, 5 N.Y.S.3d 283 ). The complaint was filed on March 16, 2017. Thus, to be timely, NM's claims must have accrued no earlier than March 16, 2014 (see IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d at 139, 879 N.Y.S.2d 355, 907 N.E.2d 268 ). A tort claim accrues "as soon as ‘the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint’ " ( id. at 140, 879 N.Y.S.2d 355, 907 N.E.2d 268, quoting Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289 ). Thus, "[t]he statute of limitations for a cause of action alleging a breach of fiduciary duty does not begin to run until the fiduciary has openly repudiated his or her obligation or the relationship has been otherwise terminated" ( Loeuis v. Grushin, 126 A.D.3d at 764, 5 N.Y.S.3d 283 ). Here, the defendant submitted evidence that its decedent resigned as trustee in 2011, more than three years before this action was commenced in 2017.
In opposition to the defendant's prima facie showing, the plaintiffs failed to raise a question of fact (see Franklin v. Hafftka, 140 A.D.3d at 924, 35 N.Y.S.3d 142 ). Contrary to the plaintiffs' contention, the injury underlying the causes of action occurred during the time that the defendant's decedent allegedly mismanaged the trust assets, and not at the time that NM was first entitled to a distribution of the trust principal (see IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d at 140, 879 N.Y.S.2d 355, 907 N.E.2d 268 ; Kronos, Inc. v. AVX Corp., 81 N.Y.2d at 94, 595 N.Y.S.2d 931, 612 N.E.2d 289 ; Loeuis v. Grushin, 126 A.D.3d at 764, 5 N.Y.S.3d 283 ).
The parties' remaining contentions are without merit.
DILLON, J.P., COHEN, DUFFY and CHRISTOPHER, JJ., concur.