6D Farm Corporation v. Carr

• Court: New York Supreme Court — Appellate Division
• Citation: 6D Farm Corporation v. Carr, 63 A.D.3d 903, 882 N.Y.S.2d 198, 2009 NY Slip Op 5107 (N.Y. App. Div. 2009)
• Decision Date: 16 June 2009
• Docket Number: 2007-08031.
• Parties: 6D FARM CORPORATION, Plaintiff, v. PATRICK J. CARR et al., Defendants. VERNA B. NEILSON, Appellant, and ELENA DUKE BENEDICT, Respondent.

63 A.D.3d 903

882 N.Y.S.2d 198

2009 NY Slip Op 05107

6D FARM CORPORATION, Plaintiff, v. PATRICK J. CARR et al., Defendants VERNA B. NEILSON, Appellant, and ELENA DUKE BENEDICT, Respondent.

2007-08031.

Appellate Division of the Supreme Court of New York, Second Department.

Decided June 16, 2009.

In an action, inter alia, for an accounting and to recover damages for breach of fiduciary duty and breach of contract, Verna B. Neilson appeals, as limited by her brief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (O. Bellantoni, J.), entered April 26, 2007, as, upon an order of the same court dated January 10, 2007, granted that branch of the cross motion of the defendant Elena Duke Benedict which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred and dismissed the complaint in its entirety, with prejudice. Justice Eng has been substituted for former Associate Justice Ritter (see 22 NYCRR 670.1 [c]).

Ordered that the order and judgment is modified, on the law, by deleting from the decretal paragraph thereof the words "the defendants' cross-motion is granted; the plaintiff's motions are denied as moot, and plaintiff's complaint is dismissed in its entirety with prejudice," and substituting therefor the words "those branches of the cross motion of the defendant Elena Duke Benedict which were to dismiss the third and fourth causes of action insofar as asserted against her as time-barred are granted and that branch of the cross motion which was to dismiss the fifth cause of action is denied, the motions of Verna B. Neilson are denied as academic, and the third and fourth causes of action in the original complaint insofar as asserted against the defendant Elena Duke Benedict are dismissed with prejudice"; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

6D Farm Corporation (hereinafter 6D), and Elena Duke Benedict (hereinafter Mrs. Benedict), were equal partners in the partnership Benedict Dairy Farms (hereinafter BDF), which was dissolved in 1998. Verna B. Neilson, a daughter of Mrs. Benedict, is one of the six shareholders of 6D. In this action (hereinafter the Neilson action), Neilson seeks, inter alia, an accounting of the partnership assets and to recover damages for Mrs. Benedict's alleged breach of her fiduciary duty as a partner in BDF and her breach of a 1997 agreement to provide 6D with information about BDF's business transactions. The complaint in the Neilson action also alleges causes of action against three officers and directors of 6D, among other things, for breach of fiduciary duty.

Neilson obtained a temporary restraining order to maintain the status quo and moved, among other things, for immediate disclosure of BDF's books and, in effect, for leave to amend the complaint, changing the parties and some causes of action (hereinafter the 6D action). Mrs. Benedict opposed the motion and cross-moved to dismiss the complaint in the Neilson action on the ground, among others, that it was barred by the statute of limitations. Subsequently, Neilson moved to hold Mrs. Benedict in contempt for failure to comply with the temporary restraining order. The parties used the caption of the 6D action on all motion papers. In an order bearing the caption of the 6D action, the Supreme Court granted that branch of Mrs. Benedict's cross motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred, and denied Neilson's motions as academic. In the order and judgment appealed from, the court, inter alia, dismissed the complaint in its entirety, with prejudice. We modify.

The Supreme Court denied all branches of the two motions submitted by Neilson, including that branch which was, in effect, for leave to amend the complaint. Thus, contrary to Mrs. Benedict's contention, the use of the caption of the proposed amended complaint in the 6D action on the order and judgment apparently was inadvertent and did not indicate that the court had granted leave to amend and then dismissed the proposed amended complaint.

On a motion to dismiss pursuant to CPLR 3211, the court must take the allegations in the complaint as true and resolve all reasonable inferences in favor of the pleader (see AAA Viza, Inc. v Business Payment Sys., LLC, 38 AD3d 802, 803 [2007]). A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of demonstrating, prima facie, that the time in which to commence the action has expired (see Santo B. v Roman...