Summary
In Katz, the alleged acts giving rise to the unfair competition claim also gave rise to a breach of fiduciary duty claim, which is governed by the six year statute of limitations.
Summary of this case from Trustforte Corp. v. EisenOpinion
April 1, 1993
Appeal from the Supreme Court, New York County (Edward Greenfield, J.).
Defendant's proposed counterclaims and affirmative defense alleging fraud, malicious prosecution and defamation are not "patently insufficient" on their face (Hospital for Joint Diseases Orthopaedic Inst. v Katsikis Envtl. Contrs., 173 A.D.2d 210), supported as they are by an affidavit of merits that could properly be considered on a motion for summary judgment and showing "'good ground'" for the proposed causes of action (CK Realty Co. v ISFC Fabrics Corp., 66 A.D.2d 697, 698), and will cause plaintiff no prejudice, the motion for leave to amend having been made at an early stage of the action before any depositions were taken.
The proposed counterclaims for breach of fiduciary duty and unfair competition are not, as plaintiff argues, governed by the three-year Statute of Limitations set forth in CPLR 214 (4) for actions to recover damages to property, but by the six-year Statute of Limitations set forth in CPLR 213 (1) for breach of fiduciary duty and in CPLR 213 (2) for breach of contract (see, Butler v Gibbons, 173 A.D.2d 352; Sachs v Cluett, Peabody Co., 265 App. Div. 497, affd 291 N.Y. 772). We also note that all of the proposed counterclaims arise from the same transactions as the causes of action alleged in the plaintiff's complaint, and thus, at the least, may be interposed as setoffs to plaintiff's causes of action pursuant to CPLR 203 (c) (now CPLR 203 [d]) regardless of whether they are otherwise barred by the Statute of Limitations (see, Matter of SCM Corp. [Fisher Park Lane Co.], 40 N.Y.2d 788, 791).
Finally, defendant's affidavit of merit was sufficient to show good ground that its customer and brokers' listings were proprietary and confidential in nature, and therefore entitled to trade secret protection (Leo Silfen, Inc. v Cream, 29 N.Y.2d 387, 392), and that it had sustained actual damages as a result of plaintiff's alleged wrongdoing (see, Daukas v Shearson, Hammill Co., 26 A.D.2d 526).
We have reviewed plaintiff's remaining claims and find them to be without merit.
Concur — Murphy, P.J., Milonas, Wallach and Kassal, JJ.