| Shalik v Hewlett Assoc., L.P. |
| 2012 NY Slip Op 02095 [93 AD3d 777] |
| March 20, 2012 |
| Appellate Division, Second Department |
| Eugene Shalik et al., Appellants, v Hewlett Associates,L.P., et al., Respondents. |
—[*1] Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, N.Y. (Thomas J. McGowan ofcounsel), for respondents.
In an action for a judgment declaring that a certain amendment to a partnership agreementwas void ab initio, the plaintiffs appeal, as limited by their brief, from stated portions of an orderof the Supreme Court, Nassau County (Driscoll, J.), entered September 23, 2010, which, interalia, granted that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) todismiss the complaint as time-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
Pearl B. Kalikow (hereinafter the decedent) died on January 4, 2006. The preliminarycoexecutors of her estate (hereinafter together the plaintiffs) commenced this action on May 28,2010, against a family-owned limited partnership known as Hewlett Associates, L.P. (hereinafterthe partnership), and the decedent's two children, Edward M. Kalikow, who is both a generalpartner and a limited partner of the partnership, and Laurie Platt, who is a limited partner.
The plaintiffs sought a judgment declaring, inter alia, that the decedent's signature on aFebruary 2, 1999, amendment to the underlying agreement of partnership extending the durationof the partnership from 2015 to 2049 (hereinafter the Amendment) was a forgery, and renderedthe amendment void ab initio.
The limitations period for a fraud cause of action applies to a cause of action alleging forgery(see Coombs v Jervier, 74 AD3d724 [2010]; Matter of Lupoli, 237 AD2d 440 [1997]; Piedra v Vanover, 174AD2d 191, 194 [1992]). Pursuant to CPLR 213 (8), an action alleging fraud must be commencedby "the greater of six years from the date the cause of action accrued or two years from the timethe plaintiff or the person under whom the plaintiff claims discovered the fraud, or could withreasonable diligence have discovered it" (CPLR 213 [8]). "The two-year period begins to runwhen the [*2]circumstances reasonably would suggest to theplaintiff that he or she may have been defrauded, so as to trigger a duty to inquire on his or herpart" (Pericon v Ruck, 56 AD3d635, 636 [2008]; see Citicorp TrustBank, FSB v Makkas, 67 AD3d 950, 953 [2009]).
The plaintiffs contend that they timely commenced this action within two years of June 4,2008, the date on which the plaintiff Eugene Shalik received his expert's report opining that thedecedent's signature was falsified. However, Shalik conceded that he initially received a copy ofthe Amendment on May 10, 2006, and that he "noticed," while preparing for an arbitrationscheduled for April 9, 2008, that the decedent's signature on the Amendment differed from otherexamples of her signature, which caused him to retain a handwriting and documents expert toevaluate the signature. Shalik also testified on June 26, 2007, in the Surrogate's Court proceedingto admit the decedent's will to probate, that he had "no idea" as to whether the decedent signedthe Amendment. In another proceeding, in the Surrogate's Court, the plaintiffs asserted in amemorandum of law dated August 13, 2007, that there was no proof that the decedent "eversigned" the Amendment.
Accordingly, the defendants established, prima facie, that the plaintiffs possessedinformation regarding the questionable authenticity of the decedent's signature on theAmendment more than two years before they filed the complaint. In opposition, the plaintiffsfailed to raise an issue of fact as to the applicability of an exception to the statute of limitations oras to whether the statute of limitations was tolled (see Williams v New York City Health & Hosps. Corp., 84 AD3d1358 [2011]; Rakusin v Miano,84 AD3d 1051 [2011]). Accordingly, the plaintiffs were required to commence this action,at the latest, on or before April 9, 2010, but did not do so until May 28, 2010 (see Coombs v Jervier, 74 AD3d724 [2010]; Sabbatini v Galati,43 AD3d 1136, 1140 [2007]). Therefore, the Supreme Court correctly granted that branch ofthe defendants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint astime-barred.
In light of the foregoing, we need not reach the plaintiffs' contention regarding thearbitrability of the dispute, which has been rendered academic. Dillon, J.P., Balkin, Leventhaland Chambers, JJ., concur.
Motion by the respondents to strike the appellants' brief on an appeal from an order of theSupreme Court, Nassau County, entered September 23, 2010, on the ground that the appellantsraise issues not properly before this Court. By decision and order on motion of this Court datedAugust 2, 2011, the motion to strike the appellants' brief was referred to the panel of Justiceshearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the submission of the appeal, it is
Ordered that the motion is granted to the extent that Point I on pages 7 through 13 is strickenfrom the brief and Point I on pages 5 through 10 is stricken from the reply brief and [*3]have not been considered in the determination of the appeal, and themotion is otherwise denied. Dillon, J.P., Balkin, Leventhal and Chambers, JJ., concur.