| Roslyn Union Free School Dist. v Barkan |
| 2010 NY Slip Op 01781 [71 AD3d 660] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Roslyn Union Free School District, Appellant, v MichaelBarkan et al., Defendants, and Carol Margaritis, Respondent. |
—[*1] Spellman Rice Schure Gibbons McDonough & Polizzi, LLP, Garden City, N.Y. (John P.Gibbons, Jr., of counsel), for respondent.
In an action, inter alia, to recover damages for breach of fiduciary duty and negligence, theplaintiff appeals from an order of the Supreme Court, Nassau County (Cozzens, J.), dated March27, 2008, which granted the motion of the defendant Carol Margaritis pursuant to CPLR 3211 (a)(5) and (7) to dismiss the complaint insofar as asserted against her.
Ordered that the order is affirmed, with costs.
This action was commenced in April 2005 by the plaintiff, Roslyn Union Free SchoolDistrict (hereinafter the District), against former members of its Board of Education (hereinafterthe Board), including the respondent, Carol Margaritis, based on the members' failure to detectthe theft of $11,000,000 in District funds by District employees. In its complaint, the Districtasserted six causes of action: breach of fiduciary duty, negligence, declaratory judgment,accounting, unjust enrichment, and constructive trust. Margaritis, who served on the Board fromJuly 2000 to June 2001, moved pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaintinsofar as asserted against her. The Supreme Court granted Margaritis's motion and the Districtappeals. We affirm.
The District's breach of fiduciary duty cause of action, which seeks money damages, and itsnegligence cause of action, are time-barred by the three-year statute of limitations set forth inCPLR 214 (4) (see Livichusca v M & TMtge. Co., 49 AD3d 822, 823-824 [2008]; Weiss v TD Waterhouse, 45 AD3d 763, 764 [2007]; Nathanson v Nathanson, 20 AD3d403, 404 [2005]; Kaufman v Cohen, 307 AD2d 113, 118 [2003]; BrooklynUnion Gas Co. v Hunter Turbo Corp., 241 AD2d 505 [1997]). The District's declaratoryjudgment cause of action also must be dismissed insofar as asserted against Margaritis. Sincethis cause of action is based on the time-barred breach of fiduciary duty and negligence causes ofaction, the judgment sought by the District would serve no purpose (see Walsh vAndorn, 33 NY2d 503, 507-508 [1974]).
The District's accounting, unjust enrichment, and constructive trust causes of action must[*2]be dismissed insofar as asserted against Margaritis for failureto state a cause of action pursuant to CPLR 3211 (a) (7). Each of these causes of action require aplaintiff to set forth, inter alia, that the defendant possessed property or assets of the plaintiff (see Cruz v McAneney, 31 AD3d54, 59 [2006]; Matter of Kummer, 93 AD2d 135, 163 [1983]). Accepting theallegations in the complaint as true, and according the District the benefit of every favorableinference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the District failed to state acause of action for an accounting, unjust enrichment, or a constructive trust, as the complaint isbereft of any allegation that Margaritis possessed any property or asset of the District.
The District's remaining contentions are without merit. Mastro, J.P., Santucci, Belen andChambers, JJ., concur.