Syms v. Syms

Appellate Division of the Supreme Court of New York

Syms v. Syms

191 A.D.2d 340, 595 N.Y.S.2d 406

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

DecidedMarch 23, 1993

StatusPublished

This text of 191 A.D.2d 340 (Syms v. Syms) 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

Syms v. Syms, 191 A.D.2d 340, 595 N.Y.S.2d 406 (N.Y. Ct. App. 1993).

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Opinion

—Order and judgment (one paper), Supreme Court, New York County (Karla Moskowitz, J.), entered September 4, 1992, granting defendants’ motion for summary judgment and denying plaintiffs cross motion for summary judgment, unanimously affirmed, without costs.

The IAS Court correctly determined that summary judgment in defendants’ favor is not precluded by triable issues of fact as to whether defendant Sy Syms, aided by his attorney, defendant Rosenthal, had diluted plaintiffs stock interests in the Syms clothing corporation by fraudulently inducing plaintiffs signature on a Voting Trust Agreement, dated July 25, 1983, in connection with a public offering and reorganization. The record reflects that plaintiff, in his capacity as a director of the corporate entity and as one of the children of defendant Sy Syms, had unfettered access to the corporate books and [341]*341records, including the Amended Certificate of Incorporation, the reorganization plan and Voting Trust Agreement, prior to the July 25, 1983 reorganization and while represented by counsel; had personally executed a stock power assigning to the corporate entity his 340 shares of non-voting common stock in Syms, Inc.; and had represented in the July 25, 1983 Voting Trust Agreement and reorganization plan that he was the lawful owner of record of 340 shares of non-voting common stock in Syms. It therefore clearly appears that plaintiff knew, prior to July 25, 1983, the full nature of his father’s holdings, including the voting preferred stock in the corporation.

The IAS Court also correctly determined that the Statute of Limitations bars plaintiff’s causes of action for fraud (CPLR 203 [f]; 213 [8]; Smith v Sarkisian, 63 AD2d 780, affd 47 NY2d 878) and legal malpractice (CPLR 214 [6]; Little Princess Truck Rentals v Pergament Distribs., 143 AD2d 179, 180).

We have reviewed plaintiff’s remaining claims and find them to be without merit. Concur — Murphy, P. J., Carro, Rosenberger and Ross, JJ.

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—Order and judgment (one paper), Supreme Court, New York County (Karla Moskowitz, J.), entered September 4, 1992, granting defendants’ motion for summary judgment and denying plaintiffs cross motion for summary judgment, unanimously affirmed, without costs.

The IAS Court correctly determined that summary judgment in defendants’ favor is not precluded by triable issues of fact as to whether defendant Sy Syms, aided by his attorney, defendant Rosenthal, had diluted plaintiffs stock interests in the Syms clothing corporation by fraudulently inducing plaintiffs signature on a Voting Trust Agreement, dated July 25, 1983, in connection with a public offering and reorganization. The record reflects that plaintiff, in his capacity as a director of the corporate entity and as one of the children of defendant Sy Syms, had unfettered access to the corporate books and [341]*341records, including the Amended Certificate of Incorporation, the reorganization plan and Voting Trust Agreement, prior to the July 25, 1983 reorganization and while represented by counsel; had personally executed a stock power assigning to the corporate entity his 340 shares of non-voting common stock in Syms, Inc.; and had represented in the July 25, 1983 Voting Trust Agreement and reorganization plan that he was the lawful owner of record of 340 shares of non-voting common stock in Syms. It therefore clearly appears that plaintiff knew, prior to July 25, 1983, the full nature of his father’s holdings, including the voting preferred stock in the corporation.

The IAS Court also correctly determined that the Statute of Limitations bars plaintiff’s causes of action for fraud (CPLR 203 [f]; 213 [8]; Smith v Sarkisian, 63 AD2d 780, affd 47 NY2d 878) and legal malpractice (CPLR 214 [6]; Little Princess Truck Rentals v Pergament Distribs., 143 AD2d 179, 180).

We have reviewed plaintiff’s remaining claims and find them to be without merit. Concur — Murphy, P. J., Carro, Rosenberger and Ross, JJ.

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191 A.D.2d 340, 595 N.Y.S.2d 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/syms-v-syms-nyappdiv-1993.

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