Katz v. Bach Realty, Inc.

• Decision Date: 01 April 1993
• Parties: Alison KATZ, Plaintiff-Appellant-Cross-Respondent, v. BACH REALTY, INC., Defendant-Respondent-Cross-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 455

595 N.Y.S.2d 455

192 A.D.2d 307

Alison KATZ, Plaintiff-Appellant-Cross-Respondent, v. BACH REALTY, INC., Defendant-Respondent-Cross-Appellant.

Supreme Court, Appellate Division,

First Department.

April 1, 1993.

Before MURPHY, P.J., and MILONAS, WALLACH and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Edward Greenfield, J.), entered March 6, 1992, which, inter alia, granted defendant's motion to serve an amended answer insofar as it sought leave to interpose counterclaims for breach of contract, breach of fiduciary duty and unfair competition, but denied such motion insofar as it sought leave to interpose counterclaims for fraud, malicious prosecution and defamation, unanimously modified, on the law, the facts and in the exercise of discretion, to grant defendant leave to interpose counterclaims for fraud, malicious prosecution and defamation, and otherwise affirmed, without costs.

Defendant's proposed counterclaims and affirmative defense alleging fraud, malicious prosecution and defamation are not "patently insufficient" on their face (see, Hospital for Joint Diseases v. Katsikis Environmental Contractors, Inc., 173 A.D.2d 210, 569 N.Y.S.2d 91), supported as they are by an affidavit of merits that could properly be considered on a motion for summary judgment and showing "good ground" for the proposed causes of action (see, C & K Realty Co. v. ISFC Fabrics Corp., 66 A.D.2d 697, 698, 411 N.Y.S.2d 257), and will cause plaintiff no prejudice, the motion for leave to amend having been made at an early stage of the action before any depositions were taken.

The proposed counterclaims for breach of fiduciary duty and unfair competition are not, as plaintiff argues, governed by the three-year Statute of Limitations set forth in CPLR 214(4) for actions to recover damages to property, but by the six-year Statute of Limitations set forth in CPLR 213(1) for breach of fiduciary duty and in CPLR 213(2) for breach of contract (see, Butler v. Gibbons, 173 A.D.2d 352, 569 N.Y.S.2d 722; Sachs v. Cluett, Peabody & Co., 265 App.Div. 497, 39 N.Y.S.2d 853, affd, 291 N.Y. 772, 53 N.E.2d 241). We also note that all of the proposed counterclaims arise from the same transactions as the causes of action alleged in the plaintiff's complaint, and thus, at the least, may be interposed as setoffs to plaintiff's causes of action pursuant to CPLR 203(c) (now [d] regardless of whether they are otherwise barred by the Statute of Limitations ...