Roslyn Union Free Sch. Dist. v. Barkan

• Decision Date: 02 March 2010
• Citation: 254 Ed. Law Rep. 392,2010 N.Y. Slip Op. 01781,896 N.Y.S.2d 406,71 A.D.3d 660
• Parties: ROSLYN UNION FREE SCHOOL DISTRICT, appellant,v.Michael BARKAN, et al., defendants,Carol Margaritis, respondent.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 660

896 N.Y.S.2d 406

254 Ed. Law Rep. 392

2010 N.Y. Slip Op. 01781

ROSLYN UNION FREE SCHOOL DISTRICT, appellant,

v.Michael BARKAN, et al., defendants,Carol Margaritis, respondent.

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

March 2, 2010.

Farrell Fritz, P.C., Uniondale, N.Y. (James M. Wicks and Aaron E. Zerykier of counsel), for appellant.Spellman Rice Schure Gibbons McDonough & Polizzi, LLP, Garden City, N.Y. (John P. Gibbons, Jr., of counsel), for respondent.WILLIAM F. MASTRO, J.P., FRED T. SANTUCCI, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action, inter alia, to recover damages for breach of fiduciary duty and negligence, the plaintiff appeals from an order of the Supreme Court, Nassau County (Cozzens, J.), dated March 27, 2008, which granted the motion of the defendant Carol Margaritis pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against her.

ORDERED that the order is affirmed, with costs.

This action was commenced in April 2005 by the plaintiff, Roslyn Union Free School District (hereinafter the District), against former members of its Board of Education (hereinafter the Board), including the respondent, Carol Margaritis, based on the members' failure to detect the theft of $11,000,000 in District funds by District employees. In its complaint, the District asserted six causes of action: breach of fiduciary duty, negligence, declaratory judgment, accounting, unjust enrichment, and constructive trust. Margaritis, who served on the Board from July 2000 to June 2001, moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against her. The Supreme Court granted Margaritis's motion and the District appeals. We affirm.

The District's breach of fiduciary duty cause of action, which seeks money damages, and its negligence cause of action, are time-barred by the three-year statute of limitations set forth in CPLR 214(4) ( see Livichusca v. M & T Mtge. Co., 49 A.D.3d 822, 823–824, 854 N.Y.S.2d 226; Weiss v. TD Waterhouse, 45 A.D.3d 763, 764, 847 N.Y.S.2d 94; Nathanson v. Nathanson, 20 A.D.3d 403, 404, 799 N.Y.S.2d 83; Kaufman v. Cohen, 307 A.D.2d 113, 118, 760 N.Y.S.2d 157; Brooklyn Union Gas Co. v. Hunter Turbo Corp., 241 A.D.2d 505, 660 N.Y.S.2d 877). The District's declaratory judgment cause of action also must be dismissed insofar as asserted against Margaritis. Since this cause of action is based on the time-barred breach of fiduciary duty and negligence causes of action, the judgment sought by the District would serve no purpose ( see Walsh v. Andorn, 33 N.Y.2d 503, 507–508, 355 N.Y.S.2d 329, 311 N.E.2d 476).

The District's accounting,...