| Evangelista v Mattone |
| 2007 NY Slip Op 07656 [44 AD3d 704] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Louis Evangelista, Appellant, v Joseph Mattone, Sr., et al.,Respondents, et al., Defendants. |
—[*1] Garfunkel, Wild & Travis, P.C., Great Neck, N.Y. (Roy W. Breitenbach, Andrew L.Zwerling, and Jason Hsi of counsel), for respondents.
In an action, inter alia, for an accounting, the plaintiff appeals from an order of the SupremeCourt, Kings County (Demarest, J.), dated June 26, 2006, which granted that branch of themotion of the defendants Joseph Mattone, Sr., and Saint James Apartments, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff brought this action, inter alia, for an accounting based upon a joint venturebetween the plaintiff and the defendants Joseph Mattone, Sr., and Saint James Apartments, Inc.(hereinafter the defendants). The defendants made a prima facie showing that they were entitledto judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986])because the action was barred by the six-year statute of limitations of CPLR 213 (seeCPLR 213 [1], [7]). Claims such as those at issue here accrue when "there is either an openrepudiation of the fiduciary's obligation or a judicial settlement of the fiduciary's account"(Matter of Meyer, 303 AD2d 682, 683 [2003]; see Matter of Rodken, 270 AD2d784, 785 [2000]; Westchester Religious Inst. v Kamerman, 262 AD2d 131, 131-132[1999]; see also Matter of Barabash, 31 NY2d 76, 80). In November 1998 an attorneyrepresenting the defendant Joseph Mattone, Sr., sent a letter to the attorney purportedlyrepresenting the plaintiff that openly repudiated any business relationship between the defendantsand the plaintiff, and repudiated any claims the plaintiff had under the joint venture whichallegedly gave rise to the claims involved [*2]herein. The plaintiffcommenced this action by filing a summons and verified complaint dated, and allegedly filed, onFebruary 18, 2005. Thus, by the time the plaintiff commenced this action, the six-year limitationsperiod had already expired. The plaintiff claimed in the Supreme Court that the attorney whocontacted Mattone's attorney, which contact resulted in the repudiation letter, was retained by hissons and did not have the authority to act on his behalf. However, we note, first, that the relevantcorrespondence indicated that the plaintiff was sent a copy of the correspondence. In any event,the dispositive issue is whether the repudiation was clear and made known to the plaintiff(see Matter of Meyer, 303 AD2d at 683; Matter of Behr, 191 AD2d 431, 431[1993]; see also Matter of Barabash, 31 NY2d at 80), not what prompted the repudiation.The plaintiff did not deny that the repudiation was made known to him. In sum, in opposition tothe defendants' prima facie showing of entitlement to judgment as a matter of law, the plaintifffailed to raise a triable issue of fact precluding summary judgment based on the six-yearlimitations period (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Accordingly, the SupremeCourt properly granted that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against them.
In light of the foregoing determination, it is unnecessary to address the parties' remainingcontentions. Miller, J.P., Ritter, Goldstein and Dickerson, JJ., concur.