Baron v. Galasso

• Decision Date: 05 April 2011
• Citation: 2011 N.Y. Slip Op. 02820,83 A.D.3d 626,921 N.Y.S.2d 100
• Parties: Wendy BARON, et al., appellants-respondents,v.Anthony GALASSO, et al., defendants,Signature Bank, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 626
921 N.Y.S.2d 100
2011 N.Y. Slip Op. 02820

Wendy BARON, et al., appellants-respondents,
v.
Anthony GALASSO, et al., defendants,Signature Bank, respondent-appellant.

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

April 5, 2011.

[921 N.Y.S.2d 102]

Anthony A. Capetola, Williston Park, N.Y. (Robert P. Johnson of counsel), for appellants-respondents.Westerman Ball Ederer Miller & Sharfstein, LLP, Uniondale, N.Y. (Richard Gabriele and William E. Vita of counsel), for respondent-appellant.A. GAIL PRUDENTI, P.J., DANIEL D. ANGIOLILLO, ANITA R. FLORIO, SANDRA L. SGROI, JJ.

[83 A.D.3d 626] In an action, inter alia, to recover damages for legal malpractice, conversion, negligence, and breach of fiduciary duty, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered August 6, 2009, as granted that branch of the motion of the defendant Signature Bank which was pursuant to CPLR 3211(a)(5) to dismiss so much of the complaint as was based upon acts occurring prior to January 28, 2006, insofar as asserted against it, and the defendant Signature Bank cross-appeals, as limited by its brief, from so much of the same order as denied those branches of its motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant[83 A.D.3d 627] Signature Bank which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs payable to the defendant Signature Bank.

The plaintiffs commenced this action against, among others, their attorney, Peter Galasso, Peter Galasso's brother and bookkeeper, Anthony Galasso, and Signature Bank (hereinafter Signature) based upon Anthony Galasso's alleged embezzlement of approximately $4.4 million in proceeds from the plaintiffs' sale of real property, which Peter Galasso had placed in escrow at Signature. Signature moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint insofar as asserted against it. The Supreme Court, inter alia, granted that branch of Signature's motion which was pursuant to CPLR 3211(a)(5) to dismiss so much of the complaint as was based on conduct occurring prior to January 28, 2006, insofar as asserted against it, and denied those branches of the motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it. The plaintiffs appeal, and Signature cross-appeals.

[921 N.Y.S.2d 103]

Contrary to the plaintiffs' contentions, the Supreme Court properly applied the three-year statute of limitations to the ninth cause of action, alleging negligence and the eleventh cause of action, alleging aiding and abetting a breach of fiduciary duty ( see CPLR 214[4]; IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 139–140, 879 N.Y.S.2d 355, 907 N.E.2d 268; Matter of Kaszirer v. Kaszirer, 286 A.D.2d 598, 599, 730 N.Y.S.2d 87; Heffernan v. Marine Midland Bank, 283 A.D.2d 337, 338, 727 N.Y.S.2d 60). As this action was not commenced until January 28, 2009, the Supreme Court properly granted that branch of Signature's motion which was pursuant to CPLR 3211(a)(5) to dismiss as time-barred so much of the complaint as was based upon acts occurring prior to January 28, 2006, insofar as asserted against it.

Additionally, the Supreme Court should have granted that branch of Signature's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it for failure to state a cause of action. In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must “ ‘accept the facts as alleged in the...