| Doukas v Ballard |
| 2016 NY Slip Op 00474 [135 AD3d 896] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| Ted Doukas et al., Appellants, v ClaudioBallard et al., Respondents, et al., Defendants. |
John M. Stravato, Bethpage, NY, for appellants.
Herrick, Feinstein LLP, New York, NY (Scott E. Mollen of counsel), forrespondents Claudio Ballard, Keith DeLucia, and Shephard Lane, and Weil Gotshal& Manges LLP, New York, NY (Richard L. Levine of counsel), for respondentDataTreasury Corp. (one brief filed).
In an action, inter alia, to recover damages for fraud and breach of contract, theplaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Suffolk County (Emerson, J.), dated May 1, 2013, as granted those branches ofthe motion of the defendants Claudio Ballard, Keith DeLucia, Shephard Lane, andDataTreasury Corp. which were pursuant to CPLR 3211 (a) to dismiss the causes ofaction alleging fraud, breach of contract, breach of fiduciary duty, and conversion insofaras asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants Claudio Ballard, Keith DeLucia, Shephard Lane, and DataTreasuryCorp. (hereinafter collectively the defendants) moved pursuant to CPLR 3211 (a) todismiss the complaint insofar as asserted against them, contending that all of the causesof action were time-barred, and that the causes of action alleging fraud were not pleadedwith particularity and were duplicative of the causes of action alleging breach ofcontract. The Supreme Court, among other things, granted the motion on the ground thatthe causes of action alleging breach of contract, fraud, breach of fiduciary duty, andconversion were time-barred insofar as asserted against the defendants. The plaintiffsappeal. We affirm, albeit for reasons different from those stated by the SupremeCourt.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute oflimitations grounds, the moving defendant must establish, prima facie, that the time inwhich to commence the action has expired (see Landow v Snow Becker Krauss, P.C., 111 AD3d 795,796 [2013]; Zaborowski v Local74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769 [2012]). Anaction to recover damages for breach of contract is governed by a six-year statute oflimitations period (see CPLR 213 [2]). Contrary to the plaintiffs' contention, thebreach of contract causes of action [*2]accrued, at thelatest, in 2000, when a certain patent application submitted by Ballard was approved.Therefore, the breach of contract causes of action, asserted against the defendants in2011, were time-barred.
The Supreme Court, however, should have granted dismissal of the causes of actionalleging fraud insofar as asserted against Ballard pursuant to CPLR 3211 (a) (7) asduplicative of the causes of action alleging breach of contract rather than on the groundthat they were time-barred. Here, the alleged misrepresentations set forth in the causes ofaction alleging fraud against Ballard—that Ballard schemed to defraud theplaintiff Ted Doukas out of the fruits of a certain contract formed in 1995—arenot sufficiently distinct from the claims that Ballard breached that contract so as toconstitute separate causes of action (see LIUS Group Intl. Endwell, LLC v HFS Intl., Inc., 92 AD3d918, 920 [2012]; Church ofS. India Malayalam Congregation of Greater N.Y. v Bryant Installations, Inc., 85AD3d 706, 707 [2011]). Not only did the fraud causes of action asserted againstBallard arise out of identical circumstances as the causes of action alleging breach ofcontract, but they were based upon identical allegations, and did not allege that amisrepresentation resulted in any loss independent of the damages allegedly incurred forbreach of contract; indeed, the damages sought were identical (see LIUS Group Intl.Endwell, LLC v HFS Intl., Inc., 92 AD3d at 920; Havell Capital Enhanced Mun. Income Fund, L.P. v Citibank,N.A., 84 AD3d 588 [2011]; Goldner v Possilico, 7 AD3d 666, 669 [2004]).
Further, the Supreme Court should have granted that branch of the defendants'motion which was pursuant to CPLR 3211 (a) (7) to dismiss the causes of action allegingfraud insofar as asserted against DeLucia, Lane, and DataTreasury Corp., rather than astime-barred pursuant to CPLR 3211 (a) (5). A cause of action to recover damages forfraud requires allegations of: (1) a false representation of fact, (2) knowledge of thefalsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages (see Eurycleia Partners, LP vSeward & Kissel, LLP, 12 NY3d 553, 559 [2009]; Pace v Raisman & Assoc.,Esqs., LLP, 95 AD3d 1185 [2012]). Moreover, pursuant to CPLR 3016 (b),where a cause of action is based upon fraud or aiding and abetting fraud, the"circumstances constituting the wrong" must be "stated in detail." Here, inasmuch as thecauses of action alleging fraud against DeLucia, Lane, and DataTreasury Corp. containedonly bare and conclusory allegations, without any supporting detail, they failed to satisfythe requirements of CPLR 3016 (b).
The plaintiffs' remaining contentions are without merit. Leventhal, J.P., Miller,Hinds-Radix and Maltese, JJ., concur.