Stecich Murphy & Lammers Attorneys for the plaintiff BY NYSCEF
Feinstein & Naishtut, LLP Attorneys for the defendant BY NYSCEF
Francesca E. Connolly, J.
The following documents were read in connection with the defendant's motion to dismiss:
Defendant's notice of motion, affirmation, affidavit, exhibits1-6
Plaintiff's attorney's affirmation in opposition, memo of law7-8
Defendant's reply affirmation, exhibit9-10
On August 8, 2013, the plaintiff Rye Police Association commenced this action against its former president, the defendant Timothy Chittenden. According to the complaint,  the plaintiff is a not-for-profit corporation that acts as the collective bargaining agent for police officers employed by the City of Rye, and engages in various charitable and fraternal activities. The defendant allegedly served as the plaintiff's president from January 1, 1994 to December 31, 2007, and as its treasurer from January 1, 2008 to December 28, 2009. During these time periods, the defendant was allegedly in sole and exclusive control of the plaintiff's financial records, and was the sole signatory on a bank account in its name. The plaintiff alleges that the defendant diverted funds for his own use in breach of his fiduciary duties, and seeks (1) an accounting for the years 2003 to 2009, and (2) damages for the conversion of the plaintiff's assets.
The defendant moves to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7) on the grounds that it is time-barred and fails to state a cause of action. The plaintiff opposes the motion.
The Action is Governed by a Six-Year Statute of Limitations
As an initial matter, the parties disagree as to the applicable statute of limitations. The defendant contends that, in essence, the action sounds in conversion and, thus, is governed by the three-year statute of limitations for damage to property set forth in CPLR 214 (4). The plaintiff contends that, since the action is brought by a not-for-profit corporation against a former officer and seeks to recover money damages and an accounting, the action is governed by the six-year statute of limitations set forth in CPLR 213 (7).
The Court agrees with the plaintiff. CPLR 213 (7) provides for a six-year statute of limitations for any "action by or on behalf of a corporation against a present or former director, officer or stockholder for an accounting, or to procure a judgment on the ground of fraud, or to enforce a liability, penalty or forfeiture, or to recover damages for waste or for an injury to property or for an accounting in conjunction therewith."
The first cause of action seeks an accounting, which is plainly enumerated as one of the causes of action governed by CPLR 213 (7), and is, therefore, governed by a six-year statute of limitations.
The second cause of action seeks damages for the conversion of assets. An action to recover damages for "conversion" is generally treated as an action for "injury to property, " which is governed by a three-year statute of limitations (see CPLR 214 ; see e.g. Collymore v Secretary of Hous. & Urban Dev., 22 A.D.3d 703, 703 [2d Dept 2005] ["The statute of limitations applicable to actions alleging conversion... is three years"]). The term "injury to property" is defined as "an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract" (General ...