Opinion
15546, 153313/12
06-25-2015
Simcha STERN, et al., Plaintiffs–Appellants, v. Morgan Stanley Smith BARNEY (formerly Dean Witter Reynolds), et al., Defendants–Respondents.
Song Law Firm, New York (Howard Z. Myerowitz of counsel), for appellants. Morgan Stanley Legal and Compliance Department, New York (Thomas P. Briody of counsel), for respondents.
Song Law Firm, New York (Howard Z. Myerowitz of counsel), for appellants.
Morgan Stanley Legal and Compliance Department, New York (Thomas P. Briody of counsel), for respondents.
FRIEDMAN, J.P., ANDRIAS, SAXE, RICHTER, GISCHE, JJ.
Opinion Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered May 10, 2013, which granted defendants' motion to dismiss on the basis of the statute of limitations, unanimously affirmed, with costs.
Plaintiffs' fraud claims arose more than 10 years before the commencement of this action. As such, plaintiffs had to show that they could not have discovered the fraud two years prior to this action, by the exercise of reasonable diligence (CPLR 213[8] ). Here, however, plaintiffs did not deny that they received monthly account statements, or assert that they inquired if no such statements were received. This failure was fatal to their claims of reasonable diligence (see Lim v. Kolk, 122 A.D.3d 547, 997 N.Y.S.2d 412 [1st Dept.2014] ). The breach of fiduciary duty claim was not tolled by the open repudiation doctrine. That rule applies only to claims for accounting or equitable relief, and plaintiffs' claims are solely at law (Ingham v. Thompson, 88 A.D.3d 607, 608, 931 N.Y.S.2d 306 [1st Dept.2011] ). The doctrine could not save the fiduciary duty claim as to Morgan Stanley for the additional reason that it ceased to be plaintiffs' broker in 2001, at which time the fiduciary duty was “repudiated” (see Kaszirer v. Kaszirer, 286 A.D.2d 598, 599, 730 N.Y.S.2d 87 [1st Dept.2001] ). Finally, plaintiffs' lack of reasonable diligence also bars their claims for equitable estoppel (Matter of Jack Kent Cooke, Inc. [Saatchi & Saatchi N. Am.], 222 A.D.2d 334, 335, 635 N.Y.S.2d 611 [1st Dept.1995] ).