Lentini v. Lentini

Appellate Division of the Supreme Court of New York

Lentini v. Lentini

280 A.D.2d 330, 720 N.Y.S.2d 464, 2001 N.Y. App. Div. LEXIS 1331

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

DecidedFebruary 8, 2001

StatusPublished

Cited by2 cases

This text of 280 A.D.2d 330 (Lentini v. Lentini) 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

Lentini v. Lentini, 280 A.D.2d 330, 720 N.Y.S.2d 464, 2001 N.Y. App. Div. LEXIS 1331 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 6, 1999, which, in an action by corporate shareholders alleging defendants’ misappropriation of corporate funds, granted defendants’ motion to dismiss the complaint as time-barred, unanimously affirmed, with costs.

The action, commenced in 1998, was properly dismissed as time-barred upon a finding that the misappropriations alleged, which occurred between 1982 and 1986 during defendants’ tenure as manager and bookkeeper of the residential property owned by the subject corporation, could have been discovered with reasonable diligence more than two years before the commencement of the action (CPLR 203 [g]; 213 [8]). Plaintiffs’ conclusory, unsubstantiated allegation that defendants’ wrongdoing could not have been discovered until late 1996 fails as a matter of law in the face of evidence showing otherwise (cf, CPLR 3016 [b]; see, Lefkowitz v Appelbaum, 258 AD2d 563; Ghandour v Shearson Lehman Bros., 213 AD2d 304, 305-306, lv denied 86 NY2d 710), including corporate account statements and tax returns containing information that should have alerted plaintiffs to the alleged wrongdoing, and which were available to plaintiffs at all relevant times. Certainly, as the motion court found, these and other corporate books and records should have been examined for the sort of claims plaintiffs make herein no later than 1995, when plaintiffs commenced an earlier action against defendant [331]*331manager of the property claiming a misappropriation of corporate funds. It is also pertinent that plaintiffs do not explain the circumstances surrounding defendants’ departures from their positions with the subject corporation in 1986. In view of the foregoing, it is unnecessary to reach defendants’ additional arguments in support of dismissal. Concur — Tom, J. P., Andrias, Ellerin, Rubin and Saxe, JJ.

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—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 6, 1999, which, in an action by corporate shareholders alleging defendants’ misappropriation of corporate funds, granted defendants’ motion to dismiss the complaint as time-barred, unanimously affirmed, with costs.

The action, commenced in 1998, was properly dismissed as time-barred upon a finding that the misappropriations alleged, which occurred between 1982 and 1986 during defendants’ tenure as manager and bookkeeper of the residential property owned by the subject corporation, could have been discovered with reasonable diligence more than two years before the commencement of the action (CPLR 203 [g]; 213 [8]). Plaintiffs’ conclusory, unsubstantiated allegation that defendants’ wrongdoing could not have been discovered until late 1996 fails as a matter of law in the face of evidence showing otherwise (cf, CPLR 3016 [b]; see, Lefkowitz v Appelbaum, 258 AD2d 563; Ghandour v Shearson Lehman Bros., 213 AD2d 304, 305-306, lv denied 86 NY2d 710), including corporate account statements and tax returns containing information that should have alerted plaintiffs to the alleged wrongdoing, and which were available to plaintiffs at all relevant times. Certainly, as the motion court found, these and other corporate books and records should have been examined for the sort of claims plaintiffs make herein no later than 1995, when plaintiffs commenced an earlier action against defendant [331]*331manager of the property claiming a misappropriation of corporate funds. It is also pertinent that plaintiffs do not explain the circumstances surrounding defendants’ departures from their positions with the subject corporation in 1986. In view of the foregoing, it is unnecessary to reach defendants’ additional arguments in support of dismissal. Concur — Tom, J. P., Andrias, Ellerin, Rubin and Saxe, JJ.

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Bluebook (online)

280 A.D.2d 330, 720 N.Y.S.2d 464, 2001 N.Y. App. Div. LEXIS 1331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lentini-v-lentini-nyappdiv-2001.

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