Kaymakcian v. Board of Managers of the Charles House Condominium

49 A.D.3d 407, 854 N.Y.2d 52

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2008
• Status: Published

Opinion

Dismissal of the breach of fiduciary duty claim as time-barred was improper where, pursuant to the condominiums’ bylaws, respondents had a continuing duty to repair the building’s limited common elements, including the terrace of the apartment directly above plaintiffs, which was the source of the subject recurring leaks. Respondents’ failure to do so, despite being repeatedly notified by plaintiffs, constituted a continuing wrong that “is not referable exclusively to the day the original wrong was committed” (see 1050 Tenants Corp. v Lapidus, 289 AD2d 145, 146 [2001]). However, inasmuch as plaintiffs are seeking monetary damages, the claim is limited to any alleged damages that occurred within three years of the commencement of the instant action (see Kaufman v Cohen, 307 AD2d 113, 118 [2003]; CPLR 214 [4]).

We have considered respondents’ remaining arguments, including that the complaint fails to allege specific facts to assert a breach of fiduciary duty cause of action, and find them unavailing. Concur—Mazzarelli, J.P., Andrias, Williams, Buckley and Acosta, JJ.