The following electronically filed documents read on this motion by defendants for an Order pursuant to CPLR 3211(a)(5), dismissing all claims and causes of action pled in the Verified Complaint: Papers Numbered Notice of Motion-Affirmation-Exhibits-Memo. of Law EF 7-12 Affirmation in Opposition EF 14-15 Affirmation in Reply EF 16 By Verified Complaint filed on October 16, 2020, plaintiff commenced an action to recover monetary damages for breach of contract, breach of fiduciary duty, constructive trust, and unjust enrichment against defendants. The Verified Complaint alleges that Tackiea Simpson (Tackiea) wrongfully transferred real property located at 134-43 226th Street, Laurelton, New York to Gamal Smith on April 17, 2009. Defendants now seek to dismiss the Verified Complaint on the grounds that the causes of action are all time-barred. Defendants also argue that the complaint must be dismissed since the causes of action are all predicated on an oral agreement pertaining to the conveyance of real property, which is unenforceable under the statute of frauds. On a motion pursuant to CPLR 3211(a)(5)to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired (Kitty Jie Yuan v. 2368 W. 12th St., LLC, 119 AD3d 674 [2d Dept. 2014]). Pursuant to CPLR 213, a breach of contract cause of action must be commenced within six years. The limitations period accrues at the time of the contractual breach (see Doukas v. Ballard, 135 AD3d 896 [2d Dept. 2016]). The applicable statute of limitations on a cause of action for breach of fiduciary duty where the only relief sought is monetary, as here, is three years (see Bouley v. Bouley, 19 AD3d 1049 [4th Dept. 2005]; Kaufman v. Cohen, 307 AD2d 113 [1st Dept. 2003]). The statute of limitations commences at the latest “when the fiduciary openly repudiates his or her obligation or the fiduciary relationship has otherwise been terminated” (In re Estate of Trombley, 137 AD2d 1641, 1642 [4th Dept. 2016]). The constructive trust cause of action is also governed by a six-year statute of limitations, which begins to run “upon the occurrence of the wrongful act giving rise to a duty of restitution” (Ponnambalam v. Sivaprakasapillai, 35 AD3d 571, 574 [2d Dept. 2006][internal quotation marks omitted]). Lastly, the unjust enrichment cause of action is governed by a six-year statute of limitations, which also “accrues upon the occurrence of the alleged wrongful act giving rise to the duty of restitution” (see Mannino v. Passalacqua, 172 AD3d 1190 [2d Dept. 2019]). Here, the statute of limitations began to run on all causes of action when Tackiea transferred the property on April 17, 2009. Accordingly, the statute of limitations expired prior to commencement of this action, over ten years after alleged wrongful act. Thus, defendants have established, prima facie, that the time in which to commence this action had expired prior to commencement. In opposition, plaintiff argues that the statute of limitations did not expire prior to commencement of this action because plaintiff did not learn about the transfer until 2016. To invoke equitable estoppel and avoid the statute of limitations, the plaintiff has the burden of showing not just a fiduciary relationship between the parties, but also an affirmative act of concealment or misrepresentation by the defendant that prevented the plaintiff from timely bringing a lawsuit (see Board of Mgrs. of the 23-23 Condominium v. 210th Place Realty, LLC, 185 AD3d 890 [2d Dept. 2020]). “For the doctrine to apply, a plaintiff may not rely on the same act that forms the basis for the claim — -the later fraudulent misrepresentation must be for the purpose of concealing the former tort” (Ross v. Louise Wise Servs., Inc., 8 NY3d 478, 491 [2007]). Moreover, a defendant’s mere silence or failure to disclose the wrongdoing is insufficient to trigger equitable estoppel (see Ross v. Louise Wise Servs., Inc., 8 NY3d 478 [2007]). Here, plaintiff does not allege that defendants took any specific actions after the transfer of the property that prevented him from commencing this action. Moreover, the information plaintiff needed regarding the transfer of the property was publicly available. Thus, plaintiff’s equitable estoppel argument must be rejected as plaintiff has not alleged an act of deception separate from the one for which he sued (see Corsello v. Verizon N.Y., Inc., 18 NY3d 777 [2012]). As the causes of action are time-barred, the Court need not determine whether the causes of action should be dismissed based on the statute of frauds. Accordingly, and for the above stated reasons, it is hereby ORDERED, that the motion is granted, and the Verified Complaint is dismissed as time-barred. Dated: May 7, 2021
