Opinion
Argued September 13, 1990
Decided October 16, 1990
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Edward S. Conway, J.
David F. Kunz and Brian J. McCann for appellant.
William J. Dreyer and Daniel J. Stewart for Julius Gerzof, respondent.
Andrew A. Wittenstein and Barry H. Dyller for Jerome Z. Lorber and another, respondents.
MEMORANDUM.
The order of the Appellate Division should be modified by denying defendant Gerzof's motion for summary judgment and, as so modified, affirmed; costs should be awarded to plaintiff Whalen against defendant Gerzof on the modification and to the other defendants against plaintiff Whalen on the affirmance.
The Appellate Division memorandum recites the salient facts and correctly resolves this commercial dispute between plaintiff Whalen and all the defendants except Gerzof. Thus, we affirm as to the other defendants for the reasons stated by that court ( 154 A.D.2d 843).
However, we disagree with its dismissal of the causes of action which arise out of plaintiff Whalen's and defendant Gerzof's alleged contractual and derivative fiduciary relationship. Summary judgment on Statute of Limitations grounds should not have been granted in favor of Gerzof. Those causes of action are rooted in an exchange of letters between Whalen and Gerzof in November 1975, describing an understanding that Gerzof was giving Whalen one half of Gerzof's partial interest in Pearcove Associates, a real estate enterprise, from which she would receive benefits after Gerzof's receipt of the first income or sale proceeds over $50,000. In their sui generis arrangement, the Statute of Limitations did not begin to run in 1975 or shortly afterwards, as Gerzof successfully contended below. Rather, under the alleged agreement, the Statute of Limitations was in repose until Whalen became entitled to earnings from the partnership interest above the threshold $50,000 payment, and until she demanded or became aware of her accrued rights to earnings under their agreement. The conditions precedent to the existence and accrual of these causes of action allegedly occurred in 1983. Inasmuch as the lawsuit was also begun in 1983, it was unquestionably timely.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order modified, with costs to plaintiff as against defendant Gerzof, by denying defendant Gerzof's motion for summary judgment and, as so modified, affirmed with costs to the remaining defendants against plaintiff, in a memorandum.