Opinion
5496
December 4, 2001.
Order, Supreme Court, New York County (Jane Solomon, J.), entered October 25, 2000, which granted defendant Ethel Schuman's motion to dismiss the complaint, and denied plaintiff's motion for a default judgment against defendant Louis H. Gruhin, unanimously affirmed, with costs.
Peter D. Wolf, for plaintiff-appellant.
Jack Segal, Louis H. Gruhin, for defendant-respondent.
Before: Sullivan, P.J., Williams, Ellerin, Lerner, Saxe, JJ.
The complaint, against the executrix of the estate of plaintiff's husband, Schuman, and the executrix's attorney, Gruhin, was properly dismissed as time-barred. Contrary to plaintiff's argument, the motion court did not improperly treat defendant's motion to dismiss as a motion for summary judgment. The court's determination was plainly premised on the allegations of the complaint, not the evidentiary matter submitted by defendant. On the merits, the court correctly concluded that plaintiff's claims against defendants for fraud and breach of fiduciary duty were barred by the Statute of Limitations pursuant to CPLR 203(g) and 213. Plaintiff's contention that the applicable limitations periods were tolled is without legal support (see, Ghandour v. Shearson Lehman Bros., Inc., 213 A.D.2d 304, 305-306, lv denied 86 N.Y.2d 710; CPLR 213). We note in this connection, that any issues pertaining to Schuman's alleged breach of her fiduciary duty as executrix were, or should have been, disposed of during the Surrogate's Court accounting proceeding (see, N Y Const, art VI, § 12[d]; Surrogate's Court Procedure Act 201; Matter of Piccione, 57 N.Y.2d 278; see also,Matter of Stern, 91 N.Y.2d 591, 596-597).
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.