| Lim v Kolk |
| 2013 NY Slip Op 07671 [111 AD3d 518] |
| November 19, 2013 |
| Appellate Division, First Department |
| Robert Lim et al., Appellants, v Joel Kolk,Respondent, et al., Defendants. |
—[*1] Alan C. Fried, Scarsdale, for respondent.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered December 3,2012, which, to the extent appealed from as limited by the briefs, granted defendant JoelKolk's motion to dismiss the complaint as against him, unanimously affirmed, withoutcosts.
As the motion court noted, the fraud cause of action accrued in December 2005 whenthe last allegedly fraudulent check was issued from the deceased's bank account.Plaintiffs, who claim they were unaware of the alleged fraud, were authorized toinvestigate and obtain the deceased's financial records in May 2007. Thus, withreasonable due diligence, plaintiffs could have uncovered the alleged fraud at that time.Accordingly, the cause of action for fraud, brought more than two years from the date thealleged fraud could have been discovered and more than six years after the actual fraudoccurred, is time barred (see CPLR 213 [8]; Gutkin v Siegal, 85 AD3d 687, 687-688 [1st Dept 2011]).Plaintiffs' breach of fiduciary duty claim, based on allegations of actual fraud, is subjectto the six-year limitations period (Kaufman v Cohen, 307 AD2d 113, 119 [1stDept 2003]). Consequently, the court properly found that this claim is also time barred.Concur—Mazzarelli, J.P., Saxe, Moskowitz, DeGrasse and Gische, JJ.