Kenny v. RBC Royal Bank

Appellate Division of the Supreme Court of New York

Kenny v. RBC Royal Bank

22 A.D.3d 385, 803 N.Y.S.2d 49

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

DecidedOctober 20, 2005

StatusPublished

This text of 22 A.D.3d 385 (Kenny v. RBC Royal Bank) 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.

Bluebook

Kenny v. RBC Royal Bank, 22 A.D.3d 385, 803 N.Y.S.2d 49 (N.Y. Ct. App. 2005).

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Opinion

[386]*386Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 12, 2004, which, insofar as appealed from as limited by the brief, granted defendant’s motion to dismiss plaintiffs first through fourth and sixth causes of action, unanimously affirmed, with costs.

The court properly dismissed plaintiffs claims against defendant for fraud and breach of fiduciary duty as barred by the statute of limitations (see CPLR 213 [8]; 203 [g]). The alleged fraudulent act occurred in late 1982 when plaintiff invested in a tax shelter. Plaintiff admittedly had knowledge of the purported fraud in 1994, but did not commence the instant action until November 2003. Similarly, plaintiff’s cause of action alleging violations of the Racketeer Influenced and Corrupt Organizations Act ([RICO] 18 USC § 1961 et seq.), which is governed by a four-year statute of limitations (see Niagara Mohawk Power Corp. v Freed, 265 AD2d 938, 940 [1999]), was untimely, and since plaintiffs substantive claims were properly dismissed, his claim for punitive damages was also properly dismissed. Even accepting plaintiff’s position that the applicable limitations periods were tolled for 10 years during the pendency of a related action, the causes of action were still untimely, and contrary to plaintiff’s contention, defendant was not equitably estopped from asserting the statute of limitations defense. There is no evidence that defendant took any action which would have caused plaintiff to forbear from filing a timely action (see Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]; General Stencils v Chiappa, 18 NY2d 125 [1966]).

We have considered and rejected plaintiffs remaining contentions. Concur—Saxe, J.P., Ellerin, Williams, Catterson and Malone, JJ.

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[386]*386Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 12, 2004, which, insofar as appealed from as limited by the brief, granted defendant’s motion to dismiss plaintiffs first through fourth and sixth causes of action, unanimously affirmed, with costs.

The court properly dismissed plaintiffs claims against defendant for fraud and breach of fiduciary duty as barred by the statute of limitations (see CPLR 213 [8]; 203 [g]). The alleged fraudulent act occurred in late 1982 when plaintiff invested in a tax shelter. Plaintiff admittedly had knowledge of the purported fraud in 1994, but did not commence the instant action until November 2003. Similarly, plaintiff’s cause of action alleging violations of the Racketeer Influenced and Corrupt Organizations Act ([RICO] 18 USC § 1961 et seq.), which is governed by a four-year statute of limitations (see Niagara Mohawk Power Corp. v Freed, 265 AD2d 938, 940 [1999]), was untimely, and since plaintiffs substantive claims were properly dismissed, his claim for punitive damages was also properly dismissed. Even accepting plaintiff’s position that the applicable limitations periods were tolled for 10 years during the pendency of a related action, the causes of action were still untimely, and contrary to plaintiff’s contention, defendant was not equitably estopped from asserting the statute of limitations defense. There is no evidence that defendant took any action which would have caused plaintiff to forbear from filing a timely action (see Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]; General Stencils v Chiappa, 18 NY2d 125 [1966]).

We have considered and rejected plaintiffs remaining contentions. Concur—Saxe, J.P., Ellerin, Williams, Catterson and Malone, JJ.

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Bluebook (online)

22 A.D.3d 385, 803 N.Y.S.2d 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenny-v-rbc-royal-bank-nyappdiv-2005.

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