ANTHONY ALIZIO, ETC., APPELLANT-res, v. PETER ROBERT PERPIGNANO RESPONDENTS-APPELLANTS DEFENDANTS (AND A RELATED ACTION). (INDEX NO. 19181/03)In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated February 14, 2011, as denied his motion for summary judgment on his first cause of action in the amended complaint, the defendants Peter Robert Perpignano, Lillian Eisenberg, as personal representative of the estate of Irving Eisenberg, Bernice Eisenberg, as personal representative of the estate of Leonard Eisenberg, Charles Titone, Oceanview Realty Company, Oceanview Associates, Oceanview II Associates, Heyson Gardens Associates, Bridgeview II Company, Bridgeview II Associates, Bridgeview III Associates, Bridgeview III Housing Corp., and Sheila Leipsner cross-appeal from so much of the same order as denied that branch of their motion which was pursuant to CPLR 3211(a)(5) to dismiss certain causes of action in the amended complaint and certain of the amended cross claims of the defendant Joseph Alizio insofar as asserted against them as barred by the statute of limitations, and the defendant Joseph Alizio separately cross-appeals from so much of the same order as denied his cross motion for summary judgment dismissing the first cause of action in the amended complaint insofar as asserted against him and granted that branch of the motion of the defendants Peter Robert Perpignano, Lillian Eisenberg, as personal representative of the estate of Irving Eisenberg, Bernice Eisenberg, as personal representative of the estate of Leonard Eisenberg, Charles Titone, Oceanview Realty Company, Oceanview Associates, Oceanview II Associates, Heyson Gardens Associates, Bridgeview II Company, Bridgeview II Associates, Bridgeview III Associates, Bridgeview III Housing Corp., and Sheila Leipsner which was pursuant to CPLR 3211(a) (5) to dismiss certain of his amended cross claims as barred by the statute of limitations.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants Peter Robert Perpignano, Lillian Eisenberg, as personal representative of the estate of Irving Eisenberg, Bernice Eisenberg, as personal representative of the estate of Leonard Eisenberg, Charles Titone, Oceanview Realty Company, Oceanview Associates, Oceanview II Associates, Heyson Gardens Associates, Bridgeview II Company, Bridgeview II Associates, Bridgeview III Associates, Bridgeview III Housing Corp., and Sheila Leipsner which was pursuant to CPLR 3211(a) (5) to dismiss the second cause of action in the amended complaint insofar as asserted against the defendants Peter Robert Perpignano and Lillian Eisenberg, as personal representative of the estate of Irving Eisenberg, as barred by the statute of limitations, and substituting therefor a provision granting that branch of the motion, (2) by deleting the provision thereof denying that branch of the same motion which was pursuant to CPLR 3211(a) (5) to dismiss the third amended cross claim of the defendant Joseph Alizio asserted against the defendants Peter Robert Perpignano and Lillian Eisenberg, as personal representative of the estate of Irving Eisenberg, insofar as it related to the diversion of partnership funds, as barred by statute of limitations, and substituting therefor a provision granting that branch of the motion, and (3) by deleting the provision thereof granting that branch of the same motion which was pursuant to CPLR 3211(a)(5) to dismiss the second amended cross claim of the defendant Joseph Alizio asserted against the defendant Peter Robert Perpignano as barred by statute of limitations only to the extent that the second amended cross claim was based upon property owned by Wardell Apartments, Inc., and substituting therefor a provision granting that branch of the motion in its entirety; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff and the defendant Joseph Alizio to the defendants Peter Robert Perpignano and Lillian Eisenberg, as personal representative of the estate of Irving Eisenberg.
