KENNY v. RBC ROYAL BANK

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

Denis D. KENNY, Plaintiff-Appellant, v. RBC ROYAL BANK, Defendant-Respondent.

Decided: October 20, 2005

SAXE, J.P., ELLERIN, WILLIAMS, CATTERSON, MALONE, JJ. Denis D. Kenny, appellant pro se. Gibson, Dunn & Crutcher LLP, New York (Jerry J. Strochlic of counsel), for respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 12, 2004, which, insofar as appealed from as limited by the brief, granted defendant's motion to dismiss plaintiff's first through fourth and sixth causes of action, unanimously affirmed, with costs.

 The court properly dismissed plaintiff's claims against defendant for fraud and breach of fiduciary duty as barred by the statute of limitations (see CPLR 213[8], 203[g] ).  The alleged fraudulent act occurred in late 1982 when plaintiff invested in a tax shelter.   Plaintiff admittedly had knowledge of the purported fraud in 1994, but did not commence the instant action until November 2003.   Similarly, plaintiff's cause of action alleging violations of the Racketeer Influenced and Corrupt Organizations Act (18 USC § 1961 et seq. [RICO] ), which is governed by a four-year statute of limitations (see Niagara Mohawk Power Corp. v. Freed, 265 A.D.2d 938, 940, 696 N.Y.S.2d 600 [1999] ), was untimely, and since plaintiff's substantive claims were properly dismissed, his claim for punitive damages was also properly dismissed.   Even accepting plaintiff's position that the applicable limitations periods were tolled for 10 years during the pendency of a related action, the causes of action were still untimely, and contrary to plaintiff's contention, defendant was not equitably estopped from asserting the statute of limitations defense. There is no evidence that defendant took any action which would have caused plaintiff to forebear from filing a timely action (see Simcuski v. Saeli, 44 N.Y.2d 442, 448-449, 406 N.Y.S.2d 259, 377 N.E.2d 713 [1978];  General Stencils, Inc. v. Chiappa, 18 N.Y.2d 125, 272 N.Y.S.2d 337, 219 N.E.2d 169 [1966] ).

We have considered and rejected plaintiff's remaining contentions.