If Ceglia’s declaratory-relief claims do not assert any conventional claim to which a specific limitations period applies, they still are subject to a six-year limitations period under New York’s catch-all statute of limitations. N.Y. C.P.L.R. § 213(1); see also Solnick, 401 N.E.2d at 194. Case 1:10-cv-00569-RJA -LGF Document 321 Filed 03/26/12 Page 21 of 33

[A]n action based upon fraud; the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it. N.Y. C.P.L.R. § 213(8) (emphasis added). In its motion, IBM inexplicably cropped out the first half of the statute, and included only the part that references the alternative application of a two- year limit from discovery of the fraud (which applies only should that period be greater than the period measured by six years from accrual). Even the case IBM cites suggesting that the purported two-year statute of limitations applies to fraudulent inducement claims makes clear that the statute of limitations is the greater of six years from the accrual date or two years from the discovery date.

See N.Y. C.P.L.R. § 213(8) (West 2006) (fraud); Quadrozzi Concrete Corp. v. Mastroianni, 392 N.Y.S.2d 687, 688 (App. Div. 1977) (fraud); N.Y. LAB. Law § 663(3) (West 2007) (New York State labor law claims); N.Y. C.P.L.R. § 213(2) (breach of contract); Congregation Yetev Lev D'Satmar, Inc. v. 26 Adar N.B. Corp., 596 N.Y.S.2d 435, 437 (App. Div. 1993) (unjust enrichment); Eisen v. Feder, 763 N.Y.S.2d 279, 280 (App. Div. 2003) (quantum meruit); see also N.Y. C.P.L.R. § 213(1) (prescribing a six-year statute of limitations for any “action for which no limitation is specifically prescribed by law”). Likewise, Plaintiffs timely filed their Second and Third Causes of Action under the FLSA’s three-year statute of limitations.

There is also a “catchall” statute of limitations of six years for “an action for which no limitation is specifically prescribed by law.” N.Y. C.P.L.R. § 213(1). 33 Plaintiffs’ claims are also time-barred under California and Colorado law. See CAL. CIV. PROC. CODE § 337 (four years for breach of contract and contractual breach of good faith and fair dealing); COLO. REV. STAT. § 13-80- 101(1)(a) (three years for same); COLO. REV. STAT. § 13-80-102(1)(a) (two years after plaintiff knew or should have known with reasonable diligence for bad faith and negligence); Dudra v. Fairfield Ins. Co., No. CV 07-05500, 2008 WL 683387, at * 4 (C.D. Cal. March 11, 2008) (bad faith is two years after an unequivocal denial of insured’s claim); CAL. CIV. PROC. CODE § 335.1 (two years for negligence).

There is also a “catchall” statute of limitations of six years for “an action for which no limitation is specifically prescribed by law.” N.Y. C.P.L.R. § 213(1). 33 Plaintiffs’ claims are also time-barred under California and Colorado law. See CAL. CIV. PROC. CODE § 337 (four years for breach of contract and contractual breach of good faith and fair dealing); COLO. REV. STAT. § 13-80- 101(1)(a) (three years for same); COLO. REV. STAT. § 13-80-102(1)(a) (two years after plaintiff knew or should have known with reasonable diligence for bad faith and negligence); Dudra v. Fairfield Ins. Co., No. CV 07-05500, 2008 WL 683387, at * 4 (C.D. Cal. March 11, 2008) (bad faith is two years after an unequivocal denial of insured’s claim); CAL. CIV. PROC. CODE § 335.1 (two years for negligence).

Under New York law, the six-year “catch-all” limitations period provided under New York Civil Practice Law Rules (“CPLR”) § 213(1) governs all claims “for which no limitation is specifically proscribed by law.” New York courts consistently recognize that claims “sounding in negligent misrepresentation [are] governed by a six-year statute of limitations.” Milin Pharmacy, Inc. v. Cash Register Sys., Inc., 570 N.Y.S.2d 341, 341– 42 (N.Y. App. Div. 2d Dep’t 1991) (citing CPLR § 213(1)); see also Doss, Inc. v. Christie’s Inc., No. 08 Civ. 10577, 2009 WL 3053713, at *3 (S.D.N.Y. Sept. 23, 2009) (“A cause of action for negligent misrepresentation or constructive fraud is also governed by a six-year statute of limitations . . .”); Shaheen v. Stephen Hahn, Inc., No. 92 Civ. 8062, 1994 WL 854659, at *2 (S.D.N.Y. March 9, 1994) (“Under New York law, [negligent misrepresentation] claims must be commenced within six years from the purchase made in reliance on the misrepresentation”). Plaintiffs’ negligent misrepresentation claims are well within the six-year period with respect to each and every ABS purchased during the Relevant Period, which began on January 1, 2005.

Although Defendants are correct that conversion is ordinarily governed by a three-year statute of limitations, the limitations period is six years where, as here, the claim is based on allegations of fraud. See Ingrami v. Rovner, 45 A.D.3d 806, 808 (2d Dep’t 2007) (“Contrary to the appellant's claim, the fraud and conversion causes of action are governed by the six-year statute of limitations contained in CPLR 213 (8) . . . .”); Petrou v. Karl Ehmer Intl. Foods, Inc., 167 A.D.2d 338, 339 (2d Dep’t 1990) (similar); N.Y. CPLR 213(8) (providing a six-year statute of limitations for causes of action “based upon fraud”).

C. Breach of the Duty of Good Faith and Fair Dealing 1. Statute of Limitations A six-year limitations period applies to claims for breach of an implied contractual duty. N.Y. C.P.L.R. § 213(2); see VEC Corp. of Del. v. Hilliard, 896 F. Supp. 2d 253, 259 (S.D.N.Y. 2012); Callahan v. Credit Suisse, Inc., 10 Civ. 4599 (BSJ), 2011 WL 4001001, at *7 (S.D.N.Y. Aug. 18, 2011); Flights Scis., Inc. v. Cathay Pac. Airways Ltd., 647 F. Supp. 2d 285, 288 (S.D.N.Y. 2009). “A cause of action for breach of contract ordinarily accrues and the limitations period begins to run upon breach

Supp. 3d 741 (S.D.N.Y. 2018); accord, Rupolo v. Fish, 87 A.D.3d 684,685,928 N.Y.S.2d 596, 598 (2d Dep't 2011), Because Mr. Thomas also had to necessarily prevaricate to protect his dominant loyalty to Perry Comeau, the Fraud claim should stand too. Because the Breach of Fiduciary Duty claim is more akin to a common law fraud claim it is subject to Civil Practice Law and Rule §213(8) which would impose a Statute of Limitations of6 years or 2 years from Discovery ofthe Fraud

Because the Breach of Fiduciary Duty claim is more akin to a common law fraud claim it is subject to Civil Practice Law and Rule §213(8) which would impose a Statute of Limitations of 6 years or 2 years from Discovery of the Fraud. A similar statute applies under Iowa too, making the claim timely under a 5 year Statute of Limitations plus tolling based on the Disclosure Rule.