| Matter of Hiletzaris |
| 2013 NY Slip Op 02248 [105 AD3d 740] |
| April 3, 2013 |
| Appellate Division, Second Department |
| In the Matter of Ioannis Hiletzaris, Also Known as JohnHiletaris, Deceased. Kathy Liosis, Respondent; Nicholas Hiletzaris,Appellant. |
—[*1] Constantinidis & Associates, P.C., Long Island City, N.Y. (Gus John Constantinidisand Patrick J. Hackett of counsel), for respondent.
In a probate proceeding in which Kathy Liosis, the administrator of the estate ofIoannis Hiletzaris, also known as John Hiletzaris, petitioned pursuant to SCPA 2205 tocompel an accounting, Nicholas Hiletzaris appeals from an order of the Surrogate'sCourt, Queens County (Kelly, S.), dated September 8, 2011, which denied his motion forsummary judgment dismissing the proceeding on the ground that the proceeding isbarred by the statute of limitations and the doctrine of laches.
Ordered that the order is affirmed, with costs.
Ioannis Hiletzaris, also known as John Hiletzaris (hereinafter the decedent), died onApril 17, 2004. In September 2010, the petitioner, as administrator of the decedent'sestate, commenced this proceeding pursuant to SCPA 2205 to compel NicholasHiletzaris (hereinafter Nicholas) to account for his transactions and dealings as thedecedent's attorney in fact pursuant to a durable power of attorney executed by thedecedent in favor of Nicholas on November 16, 1998.
The Surrogate's Court properly denied Nicholas's motion for summary judgmentdismissing the proceeding. A proceeding to compel a fiduciary to account is governed bythe six-year statute of limitations set forth in CPLR 213 (1) (see Matter ofBarabash, 31 NY2d 76, 80 [1972]; Matter of Sbuttoni, 16 AD3d 693, 694 [2005]; Matterof Meyer, 303 AD2d 682, 683 [2003]). Here, while the fiduciary relationship endedupon the decedent's death on April 17, 2004, more than six years prior to thecommencement of this proceeding (see General Obligations Law § 5-1511[a]), the evidence submitted by Nicholas raised triable issues of fact as to whetherNicholas's alleged misrepresentations in his 2009 accounting of the estate of thedecedent's father served to toll the statute of limitations (see Tydings v Greenfield, Stein &Senior, LLP, 11 NY3d 195, 201 [2008]; Spallholz v Sheldon, 216 NY205, 209 [1915]; see also Rossv Louise Wise Servs., Inc., 8 NY3d 478, 491 [2007]). We also reject Nicholas'scontention that the petition was barred by the doctrine of laches, as Nicholas failed toestablish prima facie the requisite element of prejudice (see Saratoga CountyChamber of [*2]Commerce v Pataki, 100 NY2d 801,816 [2003], cert denied 540 US 1017 [2003]; Matter of Barabash, 31NY2d at 82; Markell vMarkell, 91 AD3d 832, 834 [2012]; Skrodelis v Norbergs, 272 AD2d316, 316 [2000]). Angiolillo, J.P., Dickerson, Chambers and Lott, JJ., concur.