LENTINI v. River Square Realty Corporation, Defendant.

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Supreme Court, Appellate Division, First Department, New York.

William V. LENTINI, et al., Plaintiffs-Appellants-Respondents, v. Jesse LENTINI, et al., Defendants-Respondents-Appellants, River Square Realty Corporation, Defendant.

Decided: February 08, 2001

TOM, J.P., ANDRIAS, ELLERIN, RUBIN and SAXE, JJ. Jeffrey M. Tamarin, for Plaintiffs-Appellants-Respondents. Stephen E. Powers, for Defendants-Respondents-Appellants.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 6, 1999, which, in an action by corporate shareholders alleging defendants' misappropriation of corporate funds, granted defendants' motion to dismiss the complaint as time-barred, unanimously affirmed, with costs.

The action, commenced in 1998, was properly dismissed as time-barred upon a finding that the misappropriations alleged, which occurred between 1982 and 1986 during defendants' tenures as manager and bookkeeper of the residential property owned by the subject corporation, could have been discovered with reasonable diligence more than two years before the commencement of the action (CPLR 203[g], 213[8]).   Plaintiffs' conclusory, unsubstantiated allegation that defendants' wrongdoing could not have been discovered until late 1996 fails as a matter of law in the face of evidence showing otherwise (cf., CPLR 3016[b];  see, Lefkowitz v. Appelbaum, 258 A.D.2d 563, 685 N.Y.S.2d 460;  Ghandour v. Shearson Lehman Bros., 213 A.D.2d 304, 305-306, 624 N.Y.S.2d 390, lv. denied 86 N.Y.2d 710, 635 N.Y.S.2d 947, 659 N.E.2d 770), including corporate account statements and tax returns containing information that should have alerted plaintiffs to the alleged wrongdoing, and which were available to plaintiffs at all relevant times.   Certainly, as the motion court found, these and other corporate books and records should have been examined for the sort of claims plaintiffs make herein no later than 1995, when plaintiffs commenced an earlier action against defendant manager of the property claiming a misappropriation of corporate funds.   It is also pertinent that plaintiffs do not explain the circumstances surrounding defendants' departures from their positions with the subject corporation in 1986. In view of the foregoing, it is unnecessary to reach defendants' additional arguments in support of dismissal.