| Senter v Gitlitz |
| 2012 NY Slip Op 05734 [97 AD3d 808] |
| July 25, 2012 |
| Appellate Division, Second Department |
| Stewart Senter, Individually and Derivatively on Behalf ofAmerican Consumer Shows, Inc., Now Known as ACS Shows, Inc., et al.,Respondents, v Craig Gitlitz et al., Appellants. |
—[*1] Rosenberg Calica & Birney, LLP, Garden City, N.Y. (Ronald J. Rosenberg and Lesley A.Reardon of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal fromso much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated September 7,2011, as denied that branch of their motion which was for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants moved, inter alia, for summary judgment dismissing the plaintiff's breach ofcontract cause of action as time-barred. A breach of contract cause of action accrues, and therelevant six-year statute of limitations begins to run, at the time of the alleged breach (seeCPLR 213 [2]; 6D Farm Corp. vCarr, 63 AD3d 903, 907 [2009]). Here, the defendants failed to establish, prima facie,that the breach of contract cause of action, which alleged the failure to make certain dividendpayments within the six-year period prior to commencement of the action, was time-barred(see CPLR 213 [2]; 6D Farm Corp. v Carr, 63 AD3d at 907). Accordingly, theSupreme Court properly denied that branch of the defendants' motion which was for summaryjudgment dismissing the breach of contract cause of action as time-barred.
The defendants also failed to demonstrate, prima facie, that the cause of action allegingbreach of fiduciary duty was time-barred, since the alleged acts upon which the cause of actionwas predicated occurred in 2009, approximately two years prior to the commencement of thepresent action (see CPLR 213 [1]; 214 [4]; see generally Carbon Capital Mgt., LLC v American Express Co., 88AD3d 933 [2011]; Wiesenthal vWiesenthal, 40 AD3d 1078, 1079-1080 [2007]). Accordingly, the Supreme Court alsoproperly denied that branch of the defendants' motion which was for summary judgmentdismissing the cause of action alleging breach of fiduciary duty as time-barred.
The defendants' remaining contentions are without merit. Skelos, J.P., Florio, Belen andSgroi, JJ., concur.