On July 1, 2021, the First Department issued a decision in Wagner v. Pegasus Capital Advisors, L.P., 2021 NY Slip Op. 04198, holding that an agreement to set-off future payments by the amount of an unpaid debt was not an improper agreement to extend the statute of limitation prior to the accrual of a claim,... Read more »
Blogs
Posts Categorized: Statute of Limitations/Laches
Tolling of Statute of Limitations Against Fiduciary Based on Fiduciary’s Concealment of Facts Cannot Be Based on Same Conduct That is the Basis for the Cause of Action
On May 7, 2021, Justice Emerson of the Suffolk County Commercial Division issued a decision in F.W. Sims, Inc. v. Simonelli, 2021 NY Slip Op. 50410(U), holding that the tolling of the statute of limitations against a fiduciary based on the fiduciary’s concealment of information cannot be based on the same conduct that forms the... Read more »
Continuing Wrong Doctrine Saves Claim From Dismissal on Statute of Limitations Grounds
On April 27, 2021, the First Department issued a decision in CWCapital Cobalt VR Ltd. v. CWCapital Invs. LLC, 2021 NY Slip Op. 02487, holding that the continuing wrong doctrine saved a claim from dismissal on statute of limitations grounds, explaining: Cobalt argues on appeal that the court erred in failing to apply the continuing... Read more »
Continuous Representation Doctrine Saves Legal Malpractice Claim From Being Time-Barred
On April 1, 2021, the First Department issued a decision in Boesky v. Levine, 2021 NY Slip Op. 02059, holding that the continuous representation doctrine saved a legal malpractice claim from being time-barred, explaining: The claim should also be reinstated against Herrick Feinstein. This Court, in HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn... Read more »
Statute of Limitations for Breach of Fiduciary Duty Claim Based on Fraud is Six Years, Not Three
On March 25, 2021, the First Department issued a decision in Wimbledon Fin. Master Fund, Ltd. v. Hallac, 2021 NY Slip Op. 01881, holding that the statute of limitations for a breach of fiduciary duty claim based on fraud was six years, explaining: The first and second causes of action — for aiding and abetting... Read more »
Dismissal for Failure Timely to Move for Default Judgment, Without More, Not Dismissal for Failure to Prosecute for CPLR 205 Purposes
On February 11, 2021, the Fourth Department issued a decision in Broadway Warehouse Co. v. Buffalo Barn Bd., LLC, 2021 NY Slip Op. 00963, holding that a dismissal for failure timely to move for default judgment, without more, was not a dismissal for failure to prosecute for CPLR 205 purposes, explaining: In 2012, plaintiff commenced... Read more »
Legal Malpractice Claim Not Saved by the Continuous Representation Doctrine
On January 26, 2021, the First Department issued a decision in Pace v. Horowitz, 2021 NY Slip Op. 00392, holding that a legal malpractice claim was not saved by the continuous representation doctrine, explaining: The court correctly determined that plaintiffs failed to show that there is an issue of fact as to whether the legal... Read more »
Statute of Limitations on Defamation Claim Runs from Date of Statement, Not Date of Discovery
On December 17, 2020, Justice Ostrager of the New York County Commercial Division issued a decision in H. Roske & Assoc., LP v. Burghart, 2020 NY Slip Op. 34220(U), holding that the statute of limitations on a claim for defamation runs from the date of the defamatory statement, not the date of discovery, explaining: Counterclaim... Read more »
Fraud Claim Time-Barred Because Plaintiff Was on Inquiry Notice More Than Two Years Before Suit Filed
On December 8, 2020, Justice Friedman of the New York County Commercial Division issued a decision in Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2020 NY Slip Op. 34044(U), holding that a fraud claim was time-barred because the plaintiff was on inquiry notice of its claim more than two years before the suit was... Read more »
Written Acknowledgement of Debt Revives Statute of Limitations
On December 2, 2020, the Second Department issued a decision in Commodore Factors Corp. v. Deutsche Bank Natl. Trust Co., 2020 NY Slip Op. 07160, holding that a written acknowledgement of a debt revives a time-barred claim, explaining: An action to foreclose a mortgage is governed by a six-year statute of limitations. Even if a... Read more »