| Monaghan v Ford Motor Co. |
| 2010 NY Slip Op 02110 [71 AD3d 848] |
| March 16, 2010 |
| Appellate Division, Second Department |
| John Monaghan, Appellant, v Ford Motor Company et al.,Respondents, et al., Defendant. |
—[*1] Barger & Wolen LLP, New York, N.Y. (Michael L. Levin of counsel), and Sutherland Asbill& Brennan LLP, Atlanta, Georgia (Carla Wong McMillian pro hac vice of counsel), forrespondent Ford Motor Company (one brief filed). Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (David L. Tillem andKathleen A. Daly of counsel), for respondent Ford Motor Credit Company. Snow Becker Krauss P.C., New York, N.Y. (Ronald S. Herzog and Kenneth E. Citron ofcounsel), for respondents Samuel Goldstein & Co., P.C., and Stuart Goldstein. Bressler, Amery & Ross, P.C., New York, N.Y. (Eric L. Chase and Gerd W. Stabbert, Jr., ofcounsel), for respondents National Star Executive Sales, LLC, and Gadi Ben Hamo.
In an action, inter alia, to recover damages for fraud and breach of fiduciary duty, theplaintiff appeals, as limited by his brief (1) from so much of an order of the Supreme Court,Nassau County (Warshawsky, J.), entered October 17, 2008, as (a) granted those branches of themotion of the defendant Ford Motor Company which were pursuant to CPLR 3211 (a) todismiss, insofar as asserted against it, the third cause of action alleging breach of fiduciary dutyas time-barred and the sixth and seventh causes of action alleging the aiding and abetting of abreach of fiduciary duty for failure to state a cause of action, (b) granted those branches of theseparate motion of the defendant Ford Motor Credit Company which were pursuant to CPLR3211 (a) to dismiss, insofar as asserted against it, the third cause of action alleging breach offiduciary duty, the sixth cause of action alleging the aiding and abetting of a breach of fiduciaryduty, and the tenth cause of action alleging aiding and abetting of duress, for failure to state acause of action, (c) granted those branches of the separate motion of defendants SamuelGoldstein & Co., P.C., and Stuart Goldstein which were pursuant to CPLR 3211 (a) to dismiss,insofar as asserted against them, the fifth cause of action alleging the aiding and abetting of abreach of fiduciary duty as time-barred, and the first cause of action alleging fraud, the fourthcause of action alleging breach of fiduciary duty, and the tenth cause of action alleging theaiding and abetting of duress, for failure to state a cause of action, and (d) granted those branchesof the separate motion of defendants National Star Executive Sales, LLC, and Gadi Ben Hamowhich were pursuant to CPLR 3211 (a) to dismiss, insofar as asserted against them, the fifthcause of action alleging the aiding and abetting of a breach of fiduciary duty as time-barred, andthe first [*2]cause of action alleging fraud, the sixth cause ofaction alleging the aiding and abetting of a breach of fiduciary duty, and the tenth cause of actionalleging the aiding and abetting of duress, for failure to state a cause of action, and (2) from somuch of an order of the same court entered April 23, 2009, as, upon reargument, adhered to theoriginal determinations in the order entered October 17, 2008.
Ordered that the appeal from the order entered October 17, 2008, is dismissed, without costsor disbursements, as that order was superseded by the order entered April 23, 2009, made uponreargument; and it is further,
Ordered that the order entered April 23, 2009, is modified, on the law, by deleting theprovisions thereof which, upon reargument, adhered to the determinations in the order enteredOctober 17, 2008, granting that branch of the motion of the defendant Ford Motor Companywhich was to dismiss the third cause of action alleging breach of fiduciary duty insofar asasserted against it, and granting those branches of the separate motions of the defendants SamuelGoldstein & Co., P.C., and Stuart Goldstein, and the defendants National Star Executive Sales,LLC, and Gadi Ben Hamo, which were to dismiss the fifth cause of action alleging that theyaided and abetted the defendant Ford Motor Company in the breach of a fiduciary duty insofar asasserted against each of them, and substituting therefor provisions, upon reargument, vacatingthe determinations in the order entered October 17, 2008, granting that branch of the motion ofthe defendant Ford Motor Company which was to dismiss the third cause of action allegingbreach of fiduciary duty insofar as asserted against it and granting those branches of the separatemotions of the defendants Samuel Goldstein & Cox, P.C., and Stuart Goldstein, and thedefendants National Star Executive Sales, LLC, and Gadi Ben Hamo which were to dismiss thefifth cause of action alleging that they aided and abetted the defendant Ford Motor Company inthe breach of a fiduciary duty insofar as asserted against each of them, and thereupon denyingthose branches of the motions; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
New York law does not provide a single statute of limitations for causes of action alleging abreach of fiduciary duty. Rather, the choice of the applicable limitations period depends on thesubstantive remedy sought by the plaintiff (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132[2009]; Loengard v Santa Fe Indus., 70 NY2d 262, 266 [1987]). Where the remedysought is purely monetary in nature, courts construe the action as alleging "injuries to property"within the meaning of CPLR 214 (4), which has a three-year limitations period (see e.g.Yatter v Morris Agency, 256 AD2d 260, 261 [1998]). Where, however, the relief sought isequitable in nature, the six-year limitations period of CPLR 213 (1) applies (see Loengard vSanta Fe Indus., 70 NY2d at 266-267). Moreover, where an allegation of fraud is essential toa breach of fiduciary duty claim, courts have applied a six-year statute of limitations underCPLR 213 (8) (see IDT Corp. v MorganStanley Dean Witter & Co., 12 NY3d 132 [2009]; Kaufman v Cohen, 307AD2d 113, 119 [2003]). However, if the fraud allegation is only incidental to the allegation ofbreach of fiduciary duty, and not essential to it, then the three-year statute of limitations willapply (see Kaufman v Cohen, 307 AD2d 113 [2003]).
We agree with the plaintiff that, here, the breach of fiduciary cause of action asserted againstthe defendant Ford Motor Company (hereinafter FMC) states an actual claim of fraud, which isnot merely incidental to the breach of fiduciary duty claim and, therefore, it is subject to asix-year statute of limitations and is not time-barred. Accordingly, the third cause of actionasserted against FMC, and sounding in breach of fiduciary duty, should not have been dismissed.For the same reason, the fifth cause of action asserted against the defendants Samuel Goldstein& Co., P.C., Stuart Goldstein, National Star Executive Sales, LLC, and Gadi Ben Hamo, allegingthat they aided and abetted FMC's breach of a fiduciary duty, is not time-barred.
"A cause of action [alleging the] aiding and abetting [of a] breach of fiduciary duty merely'requires a prima facie showing of a fiduciary duty owed to plaintiff . . . a breach ofthat duty, and defendant's substantial assistance . . . in effecting the breach, togetherwith resulting damages' " (Yuko Ito vSuzuki, 57 AD3d 205, 208 [2008] [internal quotation marks omitted], quoting Ulico Cas. Co. v Wilson, Elser,Moskowitz, Edelman & Dicker, 56 AD3d 1 [2008]; see Kaufman v Cohen, 307AD2d 113, 125 [2003]). "Substantial assistance occurs when a defendant affirmatively assists,helps conceal or fails to act when required to do so, thereby enabling the breach tooccur. . . However, the mere inaction of an alleged aider and abettor constitutessubstantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff"(Kaufman v Cohen, 307 [*3]AD2d at 126 [citationsomitted]).
The complaint adequately states a cause of action against the defendants Samuel Goldstein& Co., P.C., Stuart Goldstein, National Star Executive Sales, LLC, and Gadi Ben Hamo, torecover damages for aiding and abetting FMC's alleged breach of a fiduciary duty.
The plaintiff's remaining contentions are without merit. Fisher, J.P., Angiolillo, Leventhaland Lott, JJ., concur.