KAYMAKCIAN v. Stefanos Contracting, Inc., et al., Defendants. (2008)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered April 13, 2007, which, to the extent appealed from, granted respondents' motion for summary judgment dismissing plaintiffs' first cause of action for breach of fiduciary duty as barred by the statute of limitations, unanimously reversed, on the law, without costs, the motion denied, and the cause of action reinstated to the extent indicated herein.

Dismissal of the breach of fiduciary duty claim as time-barred was improper where, pursuant to the condominiums' by-laws, respondents had a continuing duty to repair the building's limited common elements, including the terrace of the apartment directly above plaintiffs, which was the source of the subject recurring leaks.   Respondents' failure to do so, despite being repeatedly notified by plaintiffs, constituted a continuing wrong that “is not referable exclusively to the day the original wrong was committed” (see 1050 Tenants Corp. v. Lapidus, 289 A.D.2d 145, 146, 735 N.Y.S.2d 47 [2001] ).   However, inasmuch as plaintiffs are seeking monetary damages, the claim is limited to any alleged damages that occurred within three years of the commencement of the instant action (see Kaufman v. Cohen, 307 A.D.2d 113, 118, 760 N.Y.S.2d 157 [2003];  CPLR 214[4] ).

We have considered respondents' remaining arguments, including that the complaint fails to allege specific facts to assert a breach of fiduciary duty cause of action, and find them unavailing.