Pichardo v Herskowitz

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Pichardo v Herskowitz 2021 NY Slip Op 33186(U) December 20, 2021 Supreme Court, Bronx County Docket Number: Index No. 812858/2021E Judge: Kenneth L. Thompson Jr. Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] BRONX COUNTY CLERK 01/05/2022 03:47 PM NYSCEF , DOC. NO. 12 INDEX NO. 812858/2021E RECEIVED NYSCEF: 01/05/2022 SUPR,EME COURT OF THE STATE OF COUNTY OF BRO XIA 20 EW YORK X CECILIA L. PICHARDO, FRANCISCO PICHARDO, PUR PICHARDO, Index No: 812858/2021E DECISION AND ORDER Plaintiff, -against- Present: HON. KENNETH L. THOMPSON, JR. MIC AEL HERSKOWITZ, ESQ. Defendants - -- - -- -- - - - - -- X The fol lowing papers numbered 1 to read on this motion to dismiss the complaint No n Calendar of ovember J, 202) PAPERS Notice f Motion-Order to Show Cause - Exh ibits and Affidavits Annexed--------motion sequence #I Rep Iyin O Affidavit and Ex h ib its------------------------------------------------------m o t ion sequence # I Memorandum of Law-----------------------------------------------------------------------m otion sequence # I YSCEF YSC E F YSC EF Upon th e foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows : Defendant moves pursuant to CPLR 3 21 l (a)( 1) & (7), on grounds of expiration of the statute of limitations pursuant to CPLR 214, and for failure to plead the complaint's sole cause of action with the particularity required by CPLR 30 l 6(b ). Plaintiffs' complaint alleges a single cause of action, breach of fiduciary duty. With respect to the issue of the particularity of pleading a breach of fiduciary duty: A cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016 (b) ( see Chiu v Man Choi Chiu, 71 AD3d 621,623; Tsutsui v Barasch, 67 AD3d 896, 898; Daly v Kochanowicz, 67 AD3d 78, 95; DeRaffele v 210-220-230 Owners Corp., 33 AD3d 752; Ozelkan v Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877, 879; Rasmussen v ACT Envtl. Servs., 292 AD2d 710, 712). (Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 808 [2 nd Dept 2011)). 1 of 4 C [*FILED: 2] BRONX COUNTY CLERK 01/05/2022 03:47 PM NYSCEF DOC. NO. 12 INDEX NO. 812858/2021E RECEIVED NYSCEF: 01/05/2022 The complaint alleges that defendant is an attorney that represented plaintiffs in purchasing a multi-family home. Plaintiffs further allege that "Defendant had a previous working relationship with Seller that he failed to disclo e to Plaintiffs, constituting a breach of the fiduciary duty owed to Plaintiffs as the ·r attorney." 1 Plaintiffs further allege that "Defendant failed to disclose to Plaintiffs the existence of the violations and the risks associated with closing on a prope with open violations." 2 Clearly, the aforementioned allegations are partic The only relief sought in the complaint is for the breach of fiduciary duty is for money damages, $1,000,000. "A breach of fiduciary duty claim falls under either a three-year or six-year limitation period, depending on the nature of the relief ought ( Loengard v. Sante Fe Indus., 70 N.Y.2d 262,266; Ghandour v. Shearson Lehman Bros., 213 A.D.2d 304,306, lv denied 86 .Y.2d 710). Because plaintiffs breach of fiduciary duty claim seeks only money damages, the applicable limitations period is three years. ( Yatter v. William Morris Agency, Inc., 25 6 A.D. 2d 260,261 [Pt Dept 1998]). With respect to the statute of limitations, the significant dates alleged in the complaint are as follows. Just prior to the closing on February 21, 2017, two comp aints were made to the New York City Department of Buildings regarding work being done on the pertinent property without a permit. The complaints were lodged on December 12, 2016, and December 27, 2016. Plaintiffs allege that as a result of these complaints, "[s]ince April 6, 2017, plaintiffs have been unable to occupy the property and have had to bear the cost of alternative housing arrangements while remaining responsible for the mortgage, taxes, insurance and 1 2 Comp aint, paragraph 14. Comp aint, paragraph 21. 2 2 of 4 [*FILED: 3] BRONX COUNTY CLERK 01/05/2022 03:47 PM NYSCEF DOC. NO. 12 INDEX NO. 812858/2021E RECEIVED NYSCEF: 01/05/2022 utilities of the Property, a multi-family home which they cannot occupy." 3 We now tum to the question of when IDT's breach of fiduciary duty claim accrued. A tort claim accrues as soon as "the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (Kronos, Inc. v A VX Corp., 81 NY2d 90, 94 [ 1993]). As with other torts in which damage is an essential element, the claim " is not enforceable until damages are sustained" (IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 140 Plaintiffs ' claim became enforceable, at the latest, on April 6,2017. Therefo re, the three year statute of limitations expired on April 6, 2020. However, by E cuti ve Order of the Governor of New York, the time to commence this action was tolled from March 20, 2020 until November 3, 2020. Therefore, on March 20, 2020, there were 17 days until the statute of limitations to commence this action would expire. The toll was lifted on November 3, 2020, and the statute of lim itations expired 17 days later on November 20, 2020. This action was com enced on September 23, 2021 well after the statute of limitations had 3 Comp lai nt , paragraph 26. 3 3 of 4 [*FILED: 4] BRONX COUNTY CLERK 01/05/2022 03:47 PM NYSCEF DOC. NO. 12 INDEX NO. 812858/2021E RECEIVED NYSCEF: 01/05/2022 expired. Accordingly, defendant's motion to dismiss his action is hereby granted. The foregoing constitutes the decision and order of the Court. The Clerk is directed to enter judgment accordingly. Dated: 1-i-(:J-ti/ 2.oz-1 1 I KENNETH L. THOMPSON JR. J.S 4 4 of 4 .

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