Heather Associates v. Levitz

224 A.D.2d 258, 637 N.Y.S.2d 407, 1996 N.Y. App. Div. LEXIS 989

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about December 2, 1994, which granted defendant’s motion to dismiss the complaint as time-barred, unanimously affirmed, with costs.

This Court’s previous order in a related action, Heather Assocs. v Fellner (214 AD2d 447), is dispositive of this appeal. In the prior action, the subject of which was the same transaction that plaintiff’s principal is now seeking to set aside for at least the third time, we unanimously affirmed the order of the IAS Court explicitly finding that the period during which plaintiff was under the control of a temporary receiver did not operate as a toll to the Statute of Limitations under CPLR 204. Since plaintiff makes precisely the same argument in this case, the doctrine of collateral estoppel bars plaintiff from asserting that the limitations period was tolled here (see, Kaufman v Eli Lilly & Co., 65 NY2d 449, 455-456). Without the benefit of the tolling provision, plaintiff’s claims against defendant for fraud and for violations of Executive Law §§ 135 and 135-a, arising from acts alleged to have been committed in 1979, are clearly barred by the applicable Statute of Limitations, and were properly dismissed. Concur — Milonas, J. P., Ellerin, Wallach, Kupferman and Williams, JJ.