Doukas v. Ballard

• Decision Date: 27 January 2016
• Docket Number: 2013-06589,Index No. 9267/11.
• Citation: 135 A.D.3d 896,24 N.Y.S.3d 174,2016 N.Y. Slip Op. 00474
• Parties: Ted DOUKAS, et al., appellants, v. Claudio BALLARD, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 896

24 N.Y.S.3d 174

2016 N.Y. Slip Op. 00474

Ted DOUKAS, et al., appellants,

v.Claudio BALLARD, et al., respondents, et al., defendants.

2013-06589

Index No. 9267/11.

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

Jan. 27, 2016.

John M. Stravato, Bethpage, NY, for appellants.

Herrick, Feinstein LLP, New York, N.Y. (Scott E. Mollen of counsel), for respondents Claudio Ballard, Keith DeLucia, and Shephard Lane, and Weil Gotshal & Manges LLP, New York, N.Y. (Richard L. Levine of counsel), for respondent DataTreasury Corp. (one brief filed).

In an action, inter alia, to recover damages for fraud and breach of contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated May 1, 2013, as granted those branches of the motion of the defendants Claudio Ballard, Keith DeLucia, Shephard Lane, and DataTreasury Corp. which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging fraud, breach of contract, breach of fiduciary duty, and conversion insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants Claudio Ballard, Keith DeLucia, Shephard Lane, and DataTreasury Corp. (hereinafter collectively the defendants) moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, contending that all of the causes of action were time-barred, and that the causes of action alleging fraud were not pleaded with particularity and were duplicative of the causes of action alleging breach of contract. The Supreme Court, among other things, granted the motion on the ground that the causes of action alleging breach of contract, fraud, breach of fiduciary duty, and conversion were time-barred insofar as asserted against the defendants. The plaintiffs appeal. We affirm, albeit for reasons different from those stated by the Supreme Court.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired (see Landow v. Snow Becker Krauss, P.C., 111 A.D.3d 795, 796, 975 N.Y.S.2d 119; Zaborowski v. Local 74, Serv. Empls. Intl. Union, AFL–CIO, 91 A.D.3d 768, 768–769, 936 N.Y.S.2d 575). An action to recover damages for breach of contract is governed by a six-year statute of limitations period (see CPLR 2132 ). Contrary to the plaintiffs' contention, the breach of contract causes of action accrued, at the latest, in 2000, when a certain patent application submitted by Ballard was approved. Therefore, the breach of contract causes of action, asserted against the defendants in 2011, were time-barred.

The Supreme Court, however, should have granted dismissal of the causes of action alleging fraud insofar as asserted against Ballard pursuant to CPLR 3211(a)(7) as duplicative of the causes of action alleging breach of contract rather than on the ground that they were time-barred. Here, the alleged misrepresentations set forth in the causes of action alleging fraud against Ballard—that Ballard schemed to defraud the plaintiff Ted Doukas out of the fruits of a certain contract formed in 1995—are not sufficiently distinct from the claims that Ballard breached that contract so as to constitute separate causes of action (see LIUS Group Intl. Endwell, LLC v. HFS Intl., Inc., 92 A.D.3d 918, 920, 939 N.Y.S.2d 525; Church of S. India Malayalam Congregation of Greater N.Y. v. Bryant Installations, Inc., 85 A.D.3d 706, 707, 925...