Summary
holding that a nonprofit corporation's officers could not be said to have openly repudiated their fiduciary obligations prior to leaving their positions of trust
Summary of this case from Golden Pacific Bancorp v. F.D.I.COpinion
June 15, 1999.
Appeal from the Supreme Court, New York County (Sheila Abdus-Salaam, J.).
As we noted in deciding the prior appeal in this matter, this is an action for breach of a fiduciary relationship ( 248 A.D.2d 116). Accordingly, the applicable statutory period is six years, which period does not begin to run until the fiduciary has openly repudiated his or her obligation or the relationship has been otherwise terminated ( see, Matter of Barabash, 31 N.Y.2d 76, 80; Matter of Winne, 232 A.D.2d 956, 957-958; 196 Owners Corp. v. Hampton Mgt. Co., 227 A.D.2d 296). Since defendants served as officers of plaintiff, a non-profit corporation, until August 29, 1990, this action commenced in January 1996 is timely. Moreover, since defendants cannot have been said to have openly repudiated their fiduciary obligations prior to leaving their positions of trust in 1990, the statutory period did not begin to run in defendants' favor until that time ( see, Matter of Barabash, supra; Matter of Winne, supra; 196 Owners Corp. v. Hampton Mgt. Co., supra; see also, Matter of Zilkha, 174 A.D.2d 331, 334). Accordingly, since the statutory period was tolled between the alleged fiduciary misconduct and August 29, 1990, the alleged misconduct antedating August 29, 1990 falls within the permissible temporal scope of the accounting being sought.
Concur — Rosenberger, J.P., Tom, Saxe and Buckley, JJ.