Goldberg v. Schuman

Appellate Division of the Supreme Court of New York

Goldberg v. Schuman

289 A.D.2d 8, 733 N.Y.S.2d 356, 2001 N.Y. App. Div. LEXIS 11608

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 4, 2001

StatusPublished

Cited by5 cases

This text of 289 A.D.2d 8 (Goldberg v. Schuman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Goldberg v. Schuman, 289 A.D.2d 8, 733 N.Y.S.2d 356, 2001 N.Y. App. Div. LEXIS 11608 (N.Y. Ct. App. 2001).

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Opinion

Order, Supreme Court, New York County (Jane Solomon, J.), entered October 25, 2000, which granted defendant Ethel Schuman’s motion to dismiss the complaint, and denied plaintiffs motion for a default judgment against defendant Louis H. Gruhin, unanimously affirmed, with costs.

The complaint, against the executrix of the estate of plaintiffs husband, Schuman, and the executrix’s attorney, Gruhin, was properly dismissed as time barred. Contrary to plaintiffs argument, the motion court did not improperly treat defendant’s motion to dismiss as a motion for summary judgment. The court’s determination was plainly premised on the allegations of the complaint, not the evidentiary matter submitted by defendant. On the merits, the court correctly concluded that plaintiffs claims against defendants for fraud and breach of fiduciary duty were barred by the Statute of Limitations pursuant to CPLR 203 (g) and 213. Plaintiffs contention that the applicable limitations periods were tolled is without legal support (see, Ghandour v Shearson Lehman Bros., 213 AD2d 304, 305-306, lv denied 86 NY2d 710; CPLR 213 [8]). We note in this connection, that any issues pertaining to Schuman’s alleged breach of her fiduciary duty as executrix were, or should have been, disposed of during the Surrogate’s Court ac[9]*9counting proceeding (see, NY Const, art VI, § 12 [d]; SCPA 201 [1]; Matter of Piccione, 57 NY2d 278; see also, Matter of Stern, 91 NY2d 591, 596-597).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Sullivan, P. J., Williams, Ellerin, Lerner and Saxe, JJ.

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Order, Supreme Court, New York County (Jane Solomon, J.), entered October 25, 2000, which granted defendant Ethel Schuman’s motion to dismiss the complaint, and denied plaintiffs motion for a default judgment against defendant Louis H. Gruhin, unanimously affirmed, with costs.

The complaint, against the executrix of the estate of plaintiffs husband, Schuman, and the executrix’s attorney, Gruhin, was properly dismissed as time barred. Contrary to plaintiffs argument, the motion court did not improperly treat defendant’s motion to dismiss as a motion for summary judgment. The court’s determination was plainly premised on the allegations of the complaint, not the evidentiary matter submitted by defendant. On the merits, the court correctly concluded that plaintiffs claims against defendants for fraud and breach of fiduciary duty were barred by the Statute of Limitations pursuant to CPLR 203 (g) and 213. Plaintiffs contention that the applicable limitations periods were tolled is without legal support (see, Ghandour v Shearson Lehman Bros., 213 AD2d 304, 305-306, lv denied 86 NY2d 710; CPLR 213 [8]). We note in this connection, that any issues pertaining to Schuman’s alleged breach of her fiduciary duty as executrix were, or should have been, disposed of during the Surrogate’s Court ac[9]*9counting proceeding (see, NY Const, art VI, § 12 [d]; SCPA 201 [1]; Matter of Piccione, 57 NY2d 278; see also, Matter of Stern, 91 NY2d 591, 596-597).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Sullivan, P. J., Williams, Ellerin, Lerner and Saxe, JJ.

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Bluebook (online)

289 A.D.2d 8, 733 N.Y.S.2d 356, 2001 N.Y. App. Div. LEXIS 11608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldberg-v-schuman-nyappdiv-2001.

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