| Gordon v Curtis |
| 2009 NY Slip Op 09304 [68 AD3d 549] |
| December 15, 2009 |
| Appellate Division, First Department |
| Anthony Gordon et al., Appellants, v Chris Curtis,Respondent, et al., Defendants. |
—[*1] Braverman & Associates, P.C., New York (Tracy M. Peterson of counsel), forrespondent.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 14, 2008,which granted defendants' motion to dismiss the complaint, unanimously affirmed, with costs.
Plaintiff's fraud cause of action is barred by the statute of limitations. Plaintiffs claim thatthey did not discover the alleged fraud until late 2006 or early 2007 and could not withreasonable diligence have discovered it sooner (see CPLR 213 [8]). However, only a fewmonths after their application to purchase a cooperative apartment was rejected, in 1998,plaintiffs were approved for the purchase of another apartment in the building. Although thissequence of events should fairly have aroused their suspicion, plaintiffs, who as shareholders inthe cooperative were in a position to try to discover the reason for the rejection, apparently madeno such effort in the nine years between that rejection and the return of the original apartment tothe market in 2007 (see Higgins v Crouse, 147 NY 411, 415-416 [1895]).
The statute of limitations is not tolled by application of the doctrine of equitable estoppel,since, although plaintiffs complain about the perfunctory nature of the minutes of the Boardmeeting at which their original application was rejected, they do not allege that they relied onthose minutes to their detriment (seeSolow Mgt. Corp. v Arista Records, Inc., 41 AD3d 219 [2007]). Indeed, plaintiffs didnot inspect the minutes until 2007. Nor was the statute of limitations tolled by defendant Curtis'sabsence from the state, since the court could have obtained jurisdiction over the nondomiciliaryCurtis under the long-arm statute, based on his ownership, use or possession of the cooperativeapartment (see CPLR 207 [3]; 302 [a] [4]; Matter of State Tax Commn. v Shor,43 NY2d 151, 154 [1977]; Marie vAltshuler, 30 AD3d 271, 272 [2006]).
In any event, the complaint fails to state a cause of action. The breach of contract cause ofaction does not identify the express provision that defendants allegedly breached (see 767 Third Ave. LLC v Greble &Finger, LLP, 8 AD3d 75, 75 [2004]), and the allegations of the fraud cause of action areinsufficiently specific (see id. at 75-76).[*2]
We have considered plaintiffs' remaining arguments andfind them unavailing.
We decline to award sanctions against plaintiffs for pursuing this appeal.Concur—Friedman, J.P., Sweeny, Freedman and Abdus-Salaam, JJ.