| Weiss v TD Waterhouse |
| 2007 NY Slip Op 09225 [45 AD3d 763] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Gerald M. Weiss, Appellant, v TD Waterhouse et al.,Respondents. |
—[*1] Krebsbach & Snyder, P.C., New York, N.Y. (Theodore R. Snyder of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract and breach of fiduciaryduty, the plaintiff appeals from an order of the Supreme Court, Kings County (Demarest, J.),dated March 31, 2006, which granted the defendants' motion pursuant to CPLR 3211 (a) (1), (5),and (7) to dismiss the complaint.
Ordered that the order is affirmed, with costs.
This action arises from the disclosure by TD Waterhouse Investor Services (hereinafter TDWaterhouse) of the plaintiff's brokerage account balance to the law firm representing theplaintiff's wife in their divorce proceedings in New Jersey. The disclosure revealed to the wifeand her attorney that, in violation of various orders of the New Jersey court, the plaintiff hadwithdrawn hundreds of thousands of dollars from the account. It is undisputed that the plaintiffalso failed to comply with court orders directing him to supply the wife "on an ongoing basis[with] statements, monthly and/or quarterly," on all his accounts, including the TD Waterhouseaccounts.
The Supreme Court properly granted those branches of the defendants' motion which were todismiss the breach of fiduciary duty cause of action as time-barred, and the breach of contractcause of action based on the documentary evidence submitted in support of the motion.
"A cause of action for breach of fiduciary duty is governed by a six-year statute of limitationswhere the relief sought is equitable in nature (see CPLR 213 [1]), or by a three-yearstatute of limitations where the only relief sought is money damages" (Wiesenthal vWiesenthal 40 AD3d [*2]1078, 1079 [2007]; seeCPLR 214 [4]; Nathanson vNathanson, 20 AD3d 403, 404 [2005]; Klein v Gutman, 12 AD3d 417, 419 [2004]). Here, because theplaintiff seeks only money damages, the three-year statute of limitations applies. As it isundisputed that the action was commenced well beyond the three-year limit, the breach offiduciary cause of action was time-barred.
"To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentaryevidence that forms the basis of the defense must be such that it resolves all factual issues as amatter of law, and conclusively disposes of the plaintiff's claim" (Teitler v Pollack &Sons, 288 AD2d 302, 302 [2001]; see Arnav Indus., Inc. Retirement Trust v Brown,Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Held v Kaufman,91 NY2d 425, 430-431 [1998]; Leon v Martinez, 84 NY2d 83, 88 [1994]; Klein v Gutman, 12 AD3d 417,418 [2004]). To satisfy the damages element of a cause of action for breach of contract, thepleadings must allege that the breach "directly and proximately caused" the plaintiff's injury(Rose Lee Mfg. v Chemical Bank, 186 AD2d 548, 551 [1992]; see Smith v ChaseManhattan Bank, USA, 293 AD2d 598, 600 [2002]).
In support of the motion to dismiss the breach of contract cause of action, the defendantssubmitted, inter alia, copies of various orders of the Superior Court of New Jersey, and anopinion of the Superior Court of New Jersey, Appellate Division. The orders and the opinionestablish that, at the time the account information was divulged to the wife's attorney, theplaintiff had already been directed by the court "to supply the [wife] . . . on anongoing basis, statements, monthly and/or quarterly, on all of [the plaintiff's bank and brokerage]accounts along with confirmation [of] all trade and transactions within those accounts. . . [including] . . . Waterhouse Securities accounts." Thisdocumentary evidence established, as a matter of law, that the plaintiff's purported injuries asalleged in each cause of action were caused not by TD Waterhouse's disclosure of his accountinformation, but by his own actions in violating the New Jersey court orders, or in not abiding byhis prior agreements. Accordingly, the Supreme Court properly granted that branch of thedefendants' motion which was to dismiss the cause of action to recover damages for breach ofcontract pursuant to CPLR 3211 (a) (1).
The plaintiff's remaining contentions are without merit. Santucci, J.P., Lifson, Covello andMcCarthy, JJ., concur.