SCHULMAN v. SCHULMAN FAMILY ENTERPRISES (2023)

DECISION & ORDER

In an action, inter alia, to set aside certain conveyances of real property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated May 4, 2020.  The order granted the defendants’ motion for summary judgment dismissing the complaint as time-barred.

ORDERED that the order is affirmed, with costs.

The plaintiff, David B. Schulman (hereinafter David), commenced this action in February 2019 against the defendants asserting causes of action sounding in breach of contract, violation of the Partnership Law, and breach of fiduciary duty.  David alleged that in March 1994, the defendant Lee G. Schulman (hereinafter Lee), as partner of the defendant Schulman Family Enterprises (hereinafter SFE), a real estate partnership of which David and his siblings, Lee and the defendant Julie Slann, were partners, conveyed certain real property that was owned by SFE to the defendant Martin L. Schulman.  The property was later conveyed to the defendant Safacalasada, LLC. David sought to set aside the 1994 conveyance of the property, contending that the conveyance amounted to a breach of the SFE partnership agreement, a violation of an unspecified section of the Partnership Law, and a breach of fiduciary duty.  The defendants moved for summary judgment dismissing the complaint as time-barred under the applicable six-year statute of limitations.  In an order dated May 4, 2020, the Supreme Court granted the defendants’ motion.  David appeals.

“ ‘A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired.  The burden then shifts to the plaintiff to present evidence raising a triable issue of fact as to whether the action falls within an exception to the statute of limitations’ or whether the statute of limitations has been tolled” (Cammarato v 16 Admiral Perry Plaza, LLC, 216 AD3d 903, 904–905, quoting Osborn v. DeChiara, 165 AD3d 1270, 1271;  see Tantleff v. Kestenbaum & Mark, 131 AD3d 955, 958).

Here, the defendants demonstrated that the property conveyance at issue took place in March 1994, more than six years prior to the commencement of this action, and thus, met their initial burden of establishing, prima facie, that the time in which to interpose the cause of action alleging breach of contract and violation of the Partnership Law expired prior to the commencement of this action (see CPLR 213[1], [2];  Rad & D'Aprile, Inc. v. Arnell Constr.  Corp., 203 AD3d 855, 858;  Anson v Incorporated Vil. of Freeport, 193 AD3d 799, 801;  Save the View Now v. Brooklyn Bridge Park Corp., 156 AD3d 928, 931;  Keles v. Hutlin, 144 AD3d 988, 989).  There is no single statute of limitations for causes of action alleging breach of fiduciary duty (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139;  Matter of Hersh, 198 AD3d 766, 769).  “Where [, as here,] the relief sought is equitable in nature, the statute of limitations is six years” (Matter of Hersh, 198 AD3d at 769;  see Jadidian v. Goldstein, 210 AD3d 969, 970).  A cause of action alleging breach of fiduciary duty “accrues at the time of the [alleged] breach, even though the injured party may not know of the existence of the wrong or injury” (Matter of Hersh, 198 AD3d at 769 [internal quotation marks omitted];  see Jadidian v. Goldstein, 210 AD3d at 970).  Since the property conveyance at issue took place in March 1994, more than six years prior to the commencement of this action, the defendants also met their initial burden of establishing, prima facie, that the time in which to interpose the cause of action alleging breach of fiduciary duty expired prior to the commencement of this action (see Jadidian v. Goldstein, 210 AD3d at 969–970;  Matter of Hersh, 198 AD3d at 769).

In opposition to the defendants’ prima facie showing of entitlement to judgment as a matter of law dismissing the complaint as time-barred, David failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint as time-barred under the applicable six-year limitations period for each cause of action asserted therein.

David's contentions that the defendants are barred by the doctrines of equitable estoppel and collateral estoppel from invoking the statute of limitations as an affirmative defense, raised for the first time on appeal, are not properly before us.

IANNACCI, J.P., FORD, VOUTSINAS and VENTURA, JJ., concur.