Stewart v. Berger

• Decision Date: 23 March 2016
• Docket Number: 2014-02438, Index No. 2041/12.
• Citation: 137 A.D.3d 1103,2016 N.Y. Slip Op. 02072,29 N.Y.S.3d 42
• Parties: Steven STEWART, also known as Steven McIntosh, appellant, v. David M. BERGER, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1103

29 N.Y.S.3d 42

2016 N.Y. Slip Op. 02072

Steven STEWART, also known as Steven McIntosh, appellant,

v.David M. BERGER, etc., et al., respondents.

2014-02438, Index No. 2041/12.

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

March 23, 2016.

Ofodile & Associates, P.C., Brooklyn, N.Y. (Anthony C. Ofodile of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Mark K. Anesh and Anthony J. Proscia of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

In an action, inter alia, to recover damages for breach of fiduciary duty, breach of contract, and fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), dated January 7, 2014, as denied those branches of his motion which were to vacate so much of an order of the same court (Baynes, J.), dated June 21, 2012, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the second, third, and fourth causes of action, which alleged breach of fiduciary duty, breach of contract, and fraud, respectively, and so much of the complaint as sought punitive damages, upon his failure to oppose the defendants' motion.

ORDERED that the order dated January 7, 2014, is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provisions thereof denying those branches of the plaintiff's motion which were to vacate so much of the order dated June 21, 2012, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the third and fourth causes of action, and substituting therefor a provision granting those branches of the plaintiff's motion; as so modified, the order dated January 7, 2014, is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff, and the matter is remitted to the Supreme Court, Kings County, for a determination, on the merits, of those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the third and fourth causes of action following submission of opposition papers by the plaintiff.

The plaintiff commenced this action against his former attorneys to recover damages for, among other things, breach of fiduciary duty, breach of contract, and fraud. The defendants subsequently moved pursuant to CPLR 3211(a) to dismiss the complaint. The plaintiff failed to oppose the defendants' motion and, in an order dated June 21, 2012 (hereinafter the June order), the Supreme Court granted the defendants' unopposed motion to dismiss the complaint.

The plaintiff thereafter moved to vacate the June order. In the order appealed from, the Supreme Court accepted the plaintiff's explanation for his default, which amounted to law office failure. However, the Supreme Court further determined that the plaintiff had failed to demonstrate a potentially meritorious opposition to those branches of the defendants' motion which were to dismiss the second, third, and fourth causes of action on the ground that they are time-barred, and so much of the complaint as sought punitive damages. Accordingly, the Supreme Court denied those branches of the plaintiff's motion which were to vacate so much of the June order as directed the dismissal of the second, third, and fourth causes of action, and so much of the complaint as sought punitive damages. The plaintiff appeals from those portions of the order, and we modify.

“To vacate an order made upon a plaintiff's failure to oppose a motion, the plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Estrada v. Selman, 130 A.D.3d 562, 562, 12 N.Y.S.3d 290 ; see CPLR 5015 [a][1]; Hogan v. Schwartz, 119 A.D.3d 650, 651, 990 N.Y.S.2d 67 ; Silva v. Honeydew Cab Corp., 116 A.D.3d 691, 692, 983 N.Y.S.2d 298 ; Herrera v. MTA Bus Co., 100 A.D.3d 962, 963, 954 N.Y.S.2d 631 ). “The determination of what constitutes a reasonable excuse lies within the trial court's discretion” (Glauber v. Ekstein, 133 A.D.3d 713, 713, 19 N.Y.S.3d 189 ; see Silva v. Honeydew Cab Corp., 116 A.D.3d at 692, 983 N.Y.S.2d 298 ).

Here, the defendants do not contend, as an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ), that the plaintiff's excuse of law office failure was inadequate to excuse his default in opposing the defendants' motion (see CPLR 2005 ; Estrada v. Selman, 130 A.D.3d at 563, 12 N.Y.S.3d 290 ). Rather, the parties' arguments on appeal focus on whether the plaintiff established a potentially meritorious opposition to those branches of the defendants' motion which were to dismiss the second, third, and fourth causes of action on the ground that they are time-barred, and so much of the complaint as sought punitive damages.

The second cause of action sought to recover damages for breach of fiduciary duty. Contrary to the plaintiff's contention, the Supreme Court properly determined that the three-year limitations period of CPLR 214(6), rather than the six-year limitations period of CPLR 213(1), applied to this cause of action and that it was, therefore, time-barred (see 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 ; Elmakies v. Sunshine, 113 A.D.3d 814, 815, 979 N.Y.S.2d 385 ; cf. Loeuis v. Grushin, 126 A.D.3d 761, 764, 5 N.Y.S.3d 283 ). Since the plaintiff failed to demonstrate a potentially meritorious opposition to that branch of the defendants' motion, the Supreme Court properly declined to vacate so much of the June order as directed the dismissal of the second cause of action (see generally Glauber v. Ekstein, 133 A.D.3d at 713, 19 N.Y.S.3d 189 ; U. Joon Sung v. Feng Ue Jin, 127 A.D.3d 740, 741, 6 N.Y.S.3d 551 ).

The Supreme Court also properly declined to vacate so much of the June order as directed the dismissal of so much of the complaint as sought punitive damages. Contrary to the plaintiff's contention, the complaint failed to set forth any facts or allegations to support his contention that the defendants committed a fraud “evincing a high degree of moral turpitude, and demonstrating such wanton...