three payments received from the bankruptcy claim, the statute of
limitations would not begin to run until after Defendants'
representation with respect to this claim ended. Based on
Plaintiff's complaint, the last date upon which Defendants took
any legal action in this capacity was September 29, 1995, when
they wired the proceeds of the final payment to Victum Holdings
When considering a motion to dismiss under Fed.R.Civ.P.
12(b)(6), a court "is limited to facts stated on the face of the
complaint and in documents appended to the complaint or
incorporated in the complaint by reference, as well as to matters
of which judicial notice may be taken." Automated Salvage
Transp., Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59, 67
(2d Cir. 1998). Plaintiff argues in its brief that "[t]he exact
termination of Defendants' representation is an issue of fact and
cannot be resolved on 12(b)(6) motion." Pl.'s Mem. of Law in
Opp'n to Defs.' Joint Mot. to Dismiss, at 18. Yet, as noted,
nothing in Plaintiff's complaint or attached exhibits hints that
Defendants' representation in this particular matter extended
past September 29, 1995. Cases where questions of fact have been
found with respect to the extent of an attorney's representation
are distinguishable because there evidence existed to suggest
that the attorney had continued to represent the client beyond
the date asserted by the defendants. See Weiss v. Manfredi,
83 N.Y.2d 974, 977, 616 N.Y.S.2d 325, 639 N.E.2d 1122 (1994);
Gray, 224 A.D.2d at 275-76, 638 N.Y.S.2d 18.
Without any basis in the complaint for believing that a date
other than September 29, 1995 is the termination date, the
statute of limitations should be deemed to start at this time.
This determination then raises another issue for consideration,
namely whether the amendment to CPLR 214(6) in September 1996 may
be applied retroactively to Plaintiff's claim. The courts have
been left to address this question, because the New York
Legislature made no provision for retroactivity in the statute.
Under a three-year statute of limitations, Plaintiff's claim
expired on September 29, 1998. Plaintiff's case therefore, falls
within that category of cases where the time to bring suit under
the amended version of CPLR 214(6) would not have expired when
the amendment took effect. The test is whether this remaining
time is "reasonable" in which to expect a plaintiff to bring a
lawsuit under a shortened statute of limitations. See Davis v.
Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P.C.,
175 Misc.2d 40, 45, 667 N.Y.S.2d 608 (N.Y.Sup.Ct. 1997); see also
Shirley v. Danziger, 252 A.D.2d 971, 676 N.Y.S.2d 369, 370 (4th
Dep't 1998). With respect to Plaintiff, considering two years
remained in which to file suit under the amended statute, it
would appear that a reasonable time was afforded. Consequently,
any perceived malpractice claim on the part of Plaintiff would be
time barred, since Plaintiff did not file its original complaint
until October 6, 1998 — one week after the statute of limitations
would have expired.
IV. Breach of Fiduciary Duty
With respect to breach of fiduciary duty claims, New York
applies either a three-year or a six-year statute of limitations,
depending upon the substantive remedy sought by a plaintiff. See
Loengard v. Santa Fe Indus., Inc., 70 N.Y.2d 262, 266,
519 N.Y.S.2d 801, 514 N.E.2d 113 (1987). In particular, the shorter
time period applies where monetary relief is sought, while the
longer time period applies where equitable relief is sought. See
Cooper v. Parsky, 140 F.3d 433, 440-41 (2d Cir. 1998); Geren v.
Quantum Chem. Co., 832 F. Supp. 728, 735 (S.D.N.Y. 1993) (Leval,
In this case, Plaintiff clearly seeks nothing more than
monetary damages. It has requested damages to compensate for the
monies Defendants received from the bankruptcy claim. See
Geren, 832 F. Supp.
at 736 (citing Resnick v. Resnick, 763 F. Supp. 760, 768
(S.D.N.Y. 1991).) While Plaintiff also requests costs, attorney's
fees and punitive damages, it does not ask for any equitable
relief. As such, the three-year statute of limitations applies.
Since Defendants wired the final payment from the bankruptcy
claim on September 29, 1995, and Plaintiff filed its complaint
more than three years later on October 6, 1998, Plaintiff's cause
of action for breach of fiduciary duty is time barred.
V. Conversion Claim
All parties agree that a claim for conversion is subject to a
three year statute of limitations. See Vigilant Ins. Co. of
Am., 87 N.Y.2d at 44, 637 N.Y.S.2d 342, 660 N.E.2d 1121. The
parties disagree however, as to when Plaintiff's cause of action
A. Accrual of the Cause of Action
The general rule is that "accrual runs from the date the
conversion takes place and not from discovery or the exercise of
diligence to discover." See id. (internal citations omitted).
Under this theory, Plaintiff's cause of action would have accrued
on each of the dates that Defendants wired the money. Each of
those dates is more than three years prior to the filing of
Plaintiff's complaint on October 6, 1998.
Plaintiff points to an exception provided for in CPLR § 206(a).
This statute provides:
[W]here a demand is necessary to entitle a person to
commence an action, the time within which the action
must be commenced shall be computed from the time
when the right to make the demand is complete, except
(1) where a right grows out of the receipt or
detention of money or property by a trustee, agent,
attorney or other person acting in a fiduciary
capacity, the time within which the action must be
commenced shall be computed from the time when the
person having the right to make the demand discovered
the facts upon which the right depends. . . .
Plaintiff claims the earliest date upon which it could have
discovered Defendants had wired the ICS bankruptcy payments to
other parties was September 9, 1996, when Defendant Holstein
informed Plaintiff's Swiss counsel as to where the money was
transferred. Under this theory, Plaintiff's complaint was filed
three days prior to the expiration of the statute of limitations.