| City Store Gates Mfg. Corp. v Empire Rolling Steel GatesCorp. |
| 2014 NY Slip Op 00319 [113 AD3d 718] |
| January 22, 2014 |
| Appellate Division, Second Department |
| City Store Gates Mfg. Corp.,Respondent, v Empire Rolling Steel Gates Corp., Doing Business as EmpireGates New York, Appellant, et al., Defendants. |
—[*1] Davidoff Hutcher & Citron, LLP, Garden City, N.Y. (Jonathan M. Cader of counsel),for respondent.
In an action, inter alia, to recover damages for conversion and unfair competition, thedefendant Empire Rolling Steel Gates Corp., doing business as Empire Gates New York,appeals, as limited by its brief, from so much of an order of the Supreme Court, QueensCounty (Pineda-Kirwan, J.), entered March 26, 2012, as denied those branches of itsmotion which were pursuant to CPLR 3211 (a) (5) to dismiss the fifth through thirteenthcauses of action insofar as asserted against it, as barred by the statute of limitations.
Ordered that the order is modified, on the law, by deleting the provisions thereofdenying those branches of the motion of the defendant Empire Rolling Steel Gates Corp.,doing business as Empire Gates New York, which were pursuant to CPLR 3211 (a) (5)to dismiss the fifth through ninth causes of action insofar as asserted against it, andsubstituting therefor a provision granting those branches of the motion; as so modified,the order is affirmed insofar as appealed from, without costs or disbursements.
"As a general principle, the statute of limitations begins to run when a cause of actionaccrues (see CPLR 203 [a])" (Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co.,18 NY3d 765, 770 [2012]). With respect to tort claims, "accrual occurs when theclaim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged ina complaint" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]; seeLaBello v Albany Med. Ctr. Hosp., 85 NY2d 701, 706 [1995]; Bonded Waterproofing Servs., Inc.v Anderson-Bernard Agency, Inc., 86 AD3d 527, 530 [2011]). Generally, tortclaims accrue upon an injury being sustained, not upon the defendant's wrongful act orthe plaintiff's discovery of the injury (see Ackerman v Price Waterhouse, 84NY2d 535, 541 [1994]; Kronos, Inc. v AVX Corp., 81 NY2d at 94).
Here, the fifth, sixth, and seventh causes of action allege that the defendant PabloPintado, the owner of the appellant, breached duties owed to the plaintiff, who hademployed Pintado (see generallyQosina Corp. v C & N Packaging, Inc., 96 AD3d 1032, 1033 [2012];Wallack Frgt. Lines v Next Day Express, 273 AD2d 462, 463 [2000]). Since thisaction was commenced more than three years after Pintado left the plaintiff's employ andno longer owed such duties, those causes of action are time-barred (see generallyKronos, Inc. v AVX Corp., 81 NY2d at 94; cf. Scott v Fields, 85 AD3d 756, 759 [2011]).[*2]
Similarly, the eighth and ninth causes of actionallege, in effect, conversion committed during the course of Pintado's employment. Sincea cause of action to recover damages for conversion accrues on the date the conversionoccurs, and because Pintado's employment with the plaintiff ended more than three yearsbefore the plaintiff commenced this action, these causes of action are also time-barred(see CPLR 214 [3]; Sporn v MCA Records, 58 NY2d 482, 488 [1983];Davidson v Fasanella, 269 AD2d 351 [2000]).
However, the appellant failed to demonstrate, prima facie, that the tenth throughthirteenth causes of action, which alleged tortious interference with prospective businessopportunity, prima facie tort, and unfair competition, were time-barred. The appellant'sonly showing in this regard was that Pintado's employment with the plaintiff ended morethan three years before commencement of the action. Questions of fact remain as towhether the conduct that the plaintiff alleges constituted tortious interference withprospective business opportunity, prima facie tort, and unfair competition continued afterPintado left the plaintiff's employ. In particular, questions of fact remain as to whetherthe defendants used the plaintiff's trade secrets or proprietary information after Pintadowas no longer employed by the plaintiff, such that a statute of limitations defense to thesecauses of action, which the plaintiff has alleged were predicated on such conduct, wouldfail (see Zinter Handling, Inc. vGeneral Elec. Co., 101 AD3d 1333, 1337 [2012]; Andrew Greenberg, Inc. v Svane,Inc., 36 AD3d 1094, 1098-1099 [2007]).
Accordingly, the appellant's motion should have been granted as to the fifth throughninth causes of action insofar as asserted against it, and was properly denied as to thetenth through thirteenth causes of action insofar as asserted against it.
The plaintiff's remaining contention is without merit. Skelos, J.P., Dillon, Dickersonand Austin, JJ., concur.