The following e-filed documents for Motion Sequences 1 and 2 listed by NYSCEF document numbers “11″, “14″, “15″, “16″, “17″, “18″, “19″, “20″, “21″, “22″, “23″ and attachments and exhibits have been read on this motion: Notice of Motion and Affidavits/Affirmations (Defendant) X Memorandum of Law (defendant) X Notice of Cross Motion/Opposition and Affidavits/Affirmations (Plaintiff) X Memorandum of Law (Plaintiff) X Reply Affirmation to Notice of Motion and Opposition to Cross Motion (Defendant) X The defendant moves this Court for an Order granting partial summary judgment dismissing the plaintiff’s; causes of action with respect to four properties of the six properties at issue in the summons and complaint, to wit, 1 Gracefield Drive, 10 Sinclair Drive, 14 Briar Lane, and 20 Steven Lane (collectively, “the Properties”) pursuant to CPLR §3212. The defendant submits an affidavit in support of the motion, a statement of undisputed facts, and a memorandum of law. The plaintiff opposes the defendant’s motion and cross moves for an order dismissing the defendant’s second and third affirmative defenses of statute of limitations and latches set forth in the answer pursuant to CPLR §3211(b). The plaintiff submits an affidavit, a response to the defendant’s statement of undisputed facts and plaintiff’s statement of undisputed facts, an affirmation by his attorney and related memorandum of law. The defendant submits a reply to the plaintiff’s opposition and opposes the cross motion. It is undisputed that the plaintiff “was a partner/investor” with the defendant “in a. series, of partnerships whose purpose was to purchase, improve, and sell certain real estate.” However, the specific terms of the partnerships were oral, not written. The defendant’s role in the parties’ partnership was to make “improvements” to the Properties. “For each partnership/transaction” the parties “agreed that the [d]efendant would be reimbursed for any expenses incurred in making such improvements; and that finally the partners, including the [p]laintiff and [d]efendant, would split any profits remaining from the sale proceeds.” The summons and complaint alleges causes of action sounding in an accounting of the partnership assets and expenditures, breach of fiduciary duty, fraud, and breach of the partnership agreement. In particular, the plaintiff alleges that the defendant “inflated or fabricated expenses claimed to have been incurred in improving the propert[ies] before seeking reimbursement, thus increasing the [d]efendant’s take of the total sale proceeds and reducing the profit ultimately available for division and disbursement.” The parties agree that the alleged transactions with respect to the Properties occurred more than six years “prior to the filing of the instant claims against the [d]efendant.” It is also undisputed that the defendant’s brother, Coby Gohari, commenced a lawsuit against the defendant in 2012 alleging substantially similar causes of action as the plaintiff (“Gohari Litigation”). Coby Gohari was purportedly the parties’ third partner on at least two of the Properties at issue herein. The Gohari Litigation concluded in 2019 with “a judgment of $3.75 million, plus eleven years of interest,” which was “satisfied” after the defendant was “incarcerat[ed] for Contempt of Court in November 20, 2019 (Driscoll, J.).” The defendant argues that during the ten to thirteen years since the Properties were sold, the plaintiff never “disput[ed] or question[ed] any part of the accountings or funds he received” despite being involved in the “home building” business and being “familiar with land values and construction costs.” The defendant also contends that he has “very few records” from said “transactions” and “reconstructing an accounting…will be next to impossible.” Furthermore, the defendant alleges he has “done absolutely nothing to dissuade or otherwise prevent the [p]laintiff from timely commencing this action.” Therefore, the defendant asserts that the plaintiff’s causes of action with respect to the Properties are time barred and should be dismissed. Conversely, the plaintiff argues his business interactions with the defendant were part of a “continuing course of conduct,” which should not be characterized as individual partnerships that concluded upon the resale of the Properties. Rather, the parties had a single partnership under one contract because the plaintiff used the profits from “prior investments in future properties” with the defendant. The plaintiff admits he “did not see anything that was amiss on the face of the records” and “believed [the defendant's] calculations were honest.” It was not until “late in 2019″ that the plaintiff was contacted by James O. Druker, Esq., who represented Coby Gohari in the Gohari Litigation, and learned that a judgment was entered against the defendant “for having defrauded [Coby Gohari] in regard to a number of real estate deals,” some of which the plaintiff was involved in. Prior to 2019, the plaintiff allegedly “heard rumors in the Persian community” that the defendant was “involved in litigation” with Coby Gohari but never knew the “substantive allegations” or that it “involved the joint real estate business between them.” The rumors that the defendant was in jail in connection with the Gohari Litigation did “not alert” the plaintiff that he “might have been defrauded” either because the details of the litigation were unknown by the plaintiff. The plaintiff offers several explanations as to why the allegations in the Gohari Litigation were undisclosed, including the action “was not e-filed,” Coby Gohari “took pains” to ensure the details of the action “would not be a matter of public knowledge” to mitigate the risk of others obtaining judgments against the defendant, and the defendant “did not publicize that his own brother was suing him for fraud.” However, once the plaintiff “learn[ed] the facts” regarding the Gohari Litigation, he retained Mr. Druker as counsel and instituted the instant litigation. The plaintiff concludes that the statute of limitations on his causes of action were tolled, the defendant’s motion should be dismissed, and the affirmative defenses of statute of limitations and latches set forth in the defendant’s answer should be dismissed. Applicable Law This Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 N.Y.2d 361). “The court’s function on a motion for summary judgment is ‘to determine whether material factual issues exist, not to resolve such issues (citations omitted)’” (Ruiz v. Griffin, 71 AD3d 1112, 1115). The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (See, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557). Once the movant makes its prima facie showing, the burden shifts to the opponent, who must produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial. (Id.). The motion court is required to accept the opponents’ contentions as true and resolve all reasonable inferences in the manner most favorable to the opponents (Giraldo v. Twins Ambulette Serv., Inc., 96 AD3d 903). “[A] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact” (internal quotation marks and citations omitted) {LeBlanc v. Skinner, 103 A.D.3d 202, 211-212). In order to determine the timeliness of the plaintiff’s claims regarding the Properties, the Court must first consider what the statute of limitations is for each cause of action alleged in the summons and complaint. Pursuant to CPLR §213(2), the statute of limitations for a breach of contract claim is six years and begins to accrue when the breach occurs (Soskel v. Handler, 189 Misc. 2d 795, 799). “A cause of action for an accounting accrues upon dissolution of a partnership, and must be commenced within six years of the dissolution (Mashihi v. 166-25 Hillside Partners, 51 A.D.3d 738, 739, citing Partnership Law §74; Allied Bingo Supplies of Fla., Inc. v. Hynes, 27 AD3d 597, 598; Posner v. Posner,280 AD2d 318). Pursuant to Partnership Law §62(1)(a), a partnership is dissolved “Partnership Law §62(l)(b) states that a partnership may be dissolved by the express will of any partner when no definite term or particular undertaking is specified in the partnership agreement (Gelman v. Buehler, 20 N.Y.3d 534, 537). “[T]he commonly-used statutory phrase — a ‘definite term’ — is intended to be durational in nature and refers to an identifiable termination date. A ‘particular undertaking’ has been defined to require a specific objective or project that may be accomplished at some future time, although the precise date need not be known or ascertainable at the time the partnership is created” (Id.). Causes of action sounding in “fraud must be commenced by 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. The two-year period begins to run when the circumstances reasonably would suggest to the plaintiff that he or she may have been defrauded, so as to trigger a duty to inquire on his or her part” (Shalik v. Hewlett Assoc., L.P., 93 A.D.3d 777, 778). “The question of the time when the plaintiffs are chargeable with discovery of the fraud, the time when it is established that they were possessed of knowledge of facts sufficient to suggest to a person of ordinary intelligence the probability that he had been defrauded creating a duty to inquire, is generally a mixed question of law and fact. Only where it conclusively appears that the plaintiff had knowledge of facts of that nature should a complaint be dismissed on motion (Azoy v. Fowler, 57 A.D.2d 541, 541-542, citing Erbe v. Lincoln Rochester Trust Co., 3 NY2d 321). “The statute of limitations for a cause of action sounding in breach of fiduciary duty is dependent on the relief sought. The Court of Appeals ruled in IDT Corp. v. Morgan Stanley Deal Witter & Co. (12 NY3d at 139): ‘New York law does not provide a single statute of limitations for breach of fiduciary duty claims. Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks. Where the remedy sought is purely monetary in nature, courts construe the suit as alleging ‘injury to property’ within the meaning of CPLR 214(4), which has a three-year limitations period. Where, however, the relief sought is equitable in nature, the six-year limitations period of CPLR 213(1) applies” (Loeuis v. Grushin, 126 A.D.3d 761,764). Turning to the relief sought in the plaintiff’s cross motion, it has been widely held that “a court may estop the defendants from asserting the statute of limitations defense where the defendants have, by their wrongful conduct, induced the plaintiff to postpone commencing a timely action to assert his or her rights” (Pate v. Pate, 17 AD3d 334, 334, citing Serrone v. Jamaica Hospital, 239 AD2d 485). The party asserting an exception to the statute of limitations has the burden of establishing the applicability of the estoppel doctrine by setting forth evidence showing that he or she was induced by fraud, misrepresentation, or deception to refrain from commencing an action in a timely fashion (Serrone, supra; see also Park Associates v. Crescent Park Associates, Inc., 159 AD2d 460). Discussion At the outset, the defendant claims the parties entered separate and distinct partnerships that concluded when each of the Properties were renovated and sold. There is no dispute that the Properties were sold more than six years ago (see Movant’s Statement of Undisputed Material Facts at 5; Response to Statement of Undisputed Facts and Plaintiff’s Statement of Undisputed Facts at 5). The statute of limitations for breach of contract, an accounting, fraud, and breach of fiduciary duty are six years or less (Soskel v. Handler, 189 Misc. 2d at 799; Mashihi v. 166-25 Hillside Partners, 51 A.D.3d at 739; Shalik v. Hewlett Assoc., L.P., 93 A.D.3d at 778; Loeuis v. Grushin, 126 A.D.3d at 764). As such, the defendant has demonstrated a prima facie entitlement to dismissal of the plaintiff’s causes of action with respect to the Properties due to expiration of the statute of limitations (Alvarez v. Prospect Hosp., 68 N.Y.2d at 320; Zuckerman v. City of New York, 49 N.Y.2d at 557). The plaintiff, then, is required to establish the existence of material issues of fact requiring a trial (Id.). The plaintiff by way of affidavit and an affirmation by his attorney refutes the defendant’s assertions and has raised material questions of fact regarding: (i) whether the parties’ partnership dissolved less than six years ago; and (ii) whether he became aware of the defendant’s alleged breach and fraudulent conduct less than two years ago. The plaintiff argues the parties were involved in one continuing partnership that was inclusive of all properties the parties purchased, renovated, and resold, rather than individual partnerships. As such, the plaintiff states the defendant engaged in a continuing course of conduct that tolled the statutes of limitations until the parties1 “on-going business ended,” which was when he learned the details of the Gohari Litigation in or about late 2019/early 2020. According to the plaintiff, he had no duty to inquire about the defendant’s alleged breach and fraudulent conduct prior to 2019/2020 because, although he heard rumors about the Gohari Litigation, the details of the lawsuit were not disseminated to the public as a result of the measures the defendant and Coby Gohari took to ensure the information remained concealed. While giving the plaintiff the benefit of every favorable inference, the evidence before the Court suggests there is more than one possible conclusion that can be drawn regarding the timing of partnership’s dissolution and when the plaintiff’s duty to inquire began (Giraldo v. Twins Ambulette Serv., Inc., 96 AD3d at 903; LeBlanc v. Skinner, 103 A.D.3d at 211). The determination of the issues will hinge largely on the parties’ credibility and a jury should be tasked with reconciling the accuracy of their testimony (LeBlanc, 103 A.D.3d at 212). Therefore, granting summary judgment in the defendant’s favor is inappropriate. As to the cross motion, the plaintiff argues the defendant’s affirmative defense of statute of limitations should be dismissed because the plaintiff’s causes of action are timely. However, considering the discussion above, there is a question of fact as to whether the plaintiff’s causes of action for breach of contract, an accounting, fraud and breach of fiduciary duty are time barred. Additionally, the plaintiff maintains that the defendant’s affirmative defense of latches should be dismissed because the defendant comes to this Court with “unclean hands.” Specifically, the defendant has “a well-established history of contempt for the processes of the judicial system” and allegedly “hid[] records and assets” during the course of the Gohari Litigation. The defendant’s conduct during the Gohari Litigation is not for this Court to determine. Nevertheless, the plaintiff admits he instituted the instant lawsuit immediately after learning the details and outcome of the Gohari Litigation. It follows then that the plaintiff was not induced by the defendant’s fraud to refrain from timely commencing the instant action (Serrone v. Jamaica Hospital, 239 AD2d at 485). Based on the foregoing, the Court is not persuaded that the defendant’s second and third affirmative defenses should be dismissed. Accordingly, it is hereby ORDERED, that the defendant’s motion (Motion 001) seeking partial summary judgment seeking dismissal of the plaintiffs causes of action pertaining to the properties located at 1 Gracefield Drive, 10 Sinclair Drive, 14 Briar Lane, and 20 Steven Lane is denied, and it is further ORDERED, that the plaintiffs cross motion (Motion 002) seeking to strike the defendant’s second and third affirmative defenses of statute of limitations and latches, set forth in the answer, is denied. This constitutes the decision and order of the Court. Dated: September 8, 2021
