Opinion
September 13, 2001.
Order, Supreme Court, New York County (Herman Cahn, J.), entered April 7, 2000, which, insofar as appealed from, granted defendant former trustee's motion for summary judgment to the extent of dismissing as against him, as time-barred, the sixth cause of action alleging negligence and breach of fiduciary duty, unanimously affirmed, without costs.
Declan P. Redfern, for petitioner-appellant.
Martin E. Karlinsky and Mark W. Geisler, for defendants-respondents.
Before: Williams, J.P., Mazzarelli, Andrias, Lerner, Saxe, JJ.
Appellant trust beneficiary is an aggrieved party with standing to appeal in that her interests are united with plaintiffs beneficiaries and she was adversely affected by the order appealed from (CPLR 5511; see, Auerbach v. Bennett, 47 N.Y.2d 619, 627-629;Matter of Farone, 65 N.Y.2d 764). On the merits, the Statute of Limitations for breach of fiduciary duty based on negligence is three years if monetary relief is sought, or six years if equitable relief is sought (see, Yatter v. William Morris Agency, 256 A.D.2d 260, 261, citing, inter alia, Loengard v. Santa Fe Indus., 70 N.Y.2d 262, 266). Here, the sixth cause of action alleges that defendant former trustee knew or should have known of his co-trustee's alleged conversion of trust assets and was negligent in not apprising plaintiffs thereof, and does not allege fraud or breach of any particular provision of the trust agreement. Thus, the sixth cause of action was properly held to be subject to a three-year, not a six-year, limitations period. Nor does it avail appellant to argue that the running of this three-year period did not begin until defendant clearly repudiated his fiduciary obligations by rejecting plaintiffs' demand for an accounting, since the requirement of a clear repudiation applies only to claims seeking an accounting or other equitable relief (e.g., Matter of Barabash, 31 N.Y.2d 76; Matter of Winne, 232 A.D.2d 956). In any event, such a repudiation was accomplished by defendant's resignation as trustee and surrender of the trusteeship to a successor (see, Matter of Carpenter, 271 App. Div. 71, 79, affd 297 N.Y. 498, citing, inter alia, Spallholz v. Sheldon, 216 N.Y. 205). We have considered appellant's other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.