CITY STORE GATES MFG CORP v. EMPIRE ROLLING STEEL GATES CORP

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CITY STORE GATES MFG. CORP., respondent, v. EMPIRE ROLLING STEEL GATES CORP., doing business as Empire Gates New York, appellant, et al., defendants.

Decided: January 22, 2014

PETER B. SKELOS, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ. George Bundy Smith & Assocs, P.C., Valley Cottage, N.Y. (Laury A. Betha of counsel), for appellant. Davidoff Hutcher & Citron, LLP, Garden City, N.Y. (Jonathan M. Cader of counsel), for respondent.

In an action, inter alia, to recover damages for conversion and unfair competition, the defendant Empire Rolling Steel Gates Corp., doing business as Empire Gates New York, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered March 26, 2012, as denied those branches of its motion which were pursuant to CPLR 3211(a)(5) to dismiss the fifth through thirteenth causes of action insofar as asserted against it, as barred by the statute of limitations.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendant Empire Rolling Steel Gates Corp., doing business as Empire Gates New York, which were pursuant to CPLR 3211(a)(5) to dismiss the fifth through ninth causes of action insofar as asserted against it, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

“As a general principle, the statute of limitations begins to run when a cause of action accrues (see CPLR 203[a] )” (Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 NY3d 765, 770). With respect to tort claims, “accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint” (Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94; see LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701, 706; Bonded Waterproofing Servs., Inc. v. Anderson–Bernard Agency, Inc., 86 AD3d 527, 530). Generally, tort claims accrue upon an injury being sustained, not upon the defendant's wrongful act or the plaintiff's discovery of the injury (see Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541; Kronos, Inc. v. AVX Corp., 81 N.Y.2d at 94).

Here, the fifth, sixth, and seventh causes of action allege that the defendant Pablo Pintado, the owner of the appellant, breached duties owed to the plaintiff, who had employed Pintado (see generally Qosina Corp. v. C & N Packaging, Inc., 96 AD3d 1032, 1033; Wallack Frgt. Lines v. Next Day Express, 273 A.D.2d 462, 463). Since this action was commenced more than three years after Pintado left the plaintiff's employ and no longer owed such duties, those causes of action are time-barred (see generally Kronos, Inc. v. AVX Corp., 81 N.Y.2d at 94; cf. Scott v. Fields, 85 AD3d 756, 759).

Similarly, the eighth and ninth causes of action allege, in effect, conversion committed during the course of Pintado's employment. Since a cause of action to recover damages for conversion accrues on the date the conversion occurs, and because Pintado's employment with the plaintiff ended more than three years before the plaintiff commenced this action, these causes of action are also time-barred (see CPLR 214[3]; Sporn v. MCA Records, 58 N.Y.2d 482, 488; Davidson v. Fasanella, 269 A.D.2d 351).

However, the appellant failed to demonstrate, prima facie, that the tenth through thirteenth causes of action, which alleged tortious interference with prospective business opportunity, prima facie tort, and unfair competition, were time-barred. The appellant's only showing in this regard was that Pintado's employment with the plaintiff ended more than three years before commencement of the action. Questions of fact remain as to whether the conduct that the plaintiff alleges constituted tortious interference with prospective business opportunity, prima facie tort, and unfair competition continued after Pintado left the plaintiff's employ. In particular, questions of fact remain as to whether the defendants used the plaintiff's trade secrets or proprietary information after Pintado was no longer employed by the plaintiff, such that a statute of limitations defense to these causes of action, which the plaintiff has alleged were predicated on such conduct, would fail (see Zinter Handling, Inc. v. General Elec. Co., 101 AD3d 1333, 1337; Andrew Greenberg, Inc. v. Svane, Inc., 36 AD3d 1094, 1098–1099).

Accordingly, the appellant's motion should have been granted as to the fifth through ninth causes of action insofar as asserted against it, and was properly denied as to the tenth through thirteenth causes of action insofar as asserted against it.

The plaintiff's remaining contention is without merit.

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