Livadiotakis v. Tzitzikalakis

• Decision Date: 03 February 2003
• Citation: 753 N.Y.S.2d 898,302 A.D.2d 369
• Parties: HARALABOS LIVADIOTAKIS et al., Appellants,<BR>v.<BR>MANNY TZITZIKALAKIS, Respondent.
• Court: New York Supreme Court — Appellate Division

302 A.D.2d 369

753 N.Y.S.2d 898

HARALABOS LIVADIOTAKIS et al., Appellants,

v.MANNY TZITZIKALAKIS, Respondent.

Decided February 3, 2003.

Santucci, J.P., O'Brien, Goldstein and Cozier, JJ., concur.

Ordered that the order is affirmed, with costs.

The plaintiffs' action, commenced in November 2000, was properly dismissed as time-barred (see CPLR 213; 203 [f]; Dryden Hotel Assoc. v Grimbilas, 226 AD2d 163). Any cause of action for an accounting of assets of an alleged partnership accrued in or before March 1994 when the plaintiffs were divested of any interest in the alleged partnership (see Partnership Law § 60; Dryden Hotel Assoc. v Grimbilas, supra). The plaintiff Malaxa Acquisition Company commenced an action in 1997 relating to the same subject matter which was dismissed for failure to comply with a demand for a complaint. Accordingly, the action was commenced more than six years after the causes of action accrued and more than two years after the plaintiffs discovered any alleged fraud.

The plaintiffs' contention that the branch of the motion which was pursuant to CPLR 3211 (a) (5) was rendered academic by service of an amended complaint is without merit (see Matter of Sage Realty Corp. v Proskauer Rose Goetz & Mendelsohn, 251 AD2d 35, 38, revd on other grounds 91 NY2d 30; Baker v Reis, 223 App Div 842; Matter of D'Addario v McNab, 73 Misc 2d 59, 61). It has long been the rule in this Judicial Department that a motion to dismiss which is addressed to the merits may not be defeated by an amended pleading (see Baker v Reis, supra; Matter of D'Addario v McNab, supra). A motion to dismiss an action as time-barred is addressed to the merits (see Matter of Karmel v Delfino, 293 AD2d 473).