Cross appeals from an order of the Supreme Court (McNamara, J.), entered March 20, 2009 in Albany County, which, among other things, denied defendants’ motions for summary judgment dismissing the complaint.
In 2002, defendants Dennis Mauro and Aaron Wagner formed A&D Properties, a general partnership organized for the purpose of dealing in and developing real property. In early 2004, plaintiff, Mauro, and Kevin Dailey, an attorney who had previously represented plaintiff, allegedly discussed A&D’s need for additional partners or investors to finance its exercise of an option it had acquired to purchase real property in the Town of Halfmoon, Saratoga County. Thereafter, A&D exercised the option, allegedly on the strength of plaintiffs financial assurances, and retained Dailey as its attorney.* In May 2004, plaintiff joined A&D as a partner with a one-third interest. Shortly thereafter, he and the other partners signed and personally guaranteed an agreement to indemnify the seller of the property from any claims by another potential purchaser, as well as a partnership resolution that provided, among other things, that after the closing on the real property transaction, Wagner would sell his partnership interest to the other two partners. In June 2004, A&D executed a contract of sale for the purchase of the property. Plaintiff alleges that he was not involved in negotiations to complete the purchase thereafter, but remained willing and able to contribute financially to the transaction, although financial assistance from a third-party investor he had sought to bring into the venture did not materialize. On August 5, 2004, the seller signed a warranty deed conveying the property to plaintiff,
Plaintiff alleges that when he withdrew from the partnership he did not know that the deed had been signed or that a closing and sale to Boni were scheduled. He asserts that Mauro and Wagner concealed this information from him and that Dailey, acting as agent for Mauro, Wagner, and Boni, induced him to withdraw from the partnership by misleading him to believe that the transaction had failed. Plaintiff further alleges that Boni funded A&D’s acquisition of the property and aided and abetted A&D in procuring his withdrawal from the partnership so that Boni could then purchase the property at a lower price. In August 2008, he commenced this action alleging that Mauro and Wagner breached their fiduciary duties to him as partners and that Boni aided and abetted the breach. Following joinder of issue, defendants moved for summary judgment dismissing the complaint, asserting primarily that plaintiffs claims were time-barred. Plaintiff opposed the motions and cross-moved for, among other things, leave to file an amended complaint. Supreme Court denied defendants’ motions and granted plaintiffs cross motion to amend the complaint, conditioning leave to amend on plaintiffs payment to defendants of the reasonable costs and counsel fees incurred in making their motions. The parties now cross-appeal.
Leave to amend pleadings is freely granted (see CPLR 3025 [b]) so long as “ ‘there is no prejudice to the nonmoving party and the amendment is not plainly lacking in merit’ ” (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1149 [2009], quoting Smith v Haggerty, 16 AD3d 967, 967-968 [2005]). Defendants contend that the amendment lacks merit as the action is time-barred by the three-year statute of limitations applicable to claims for injury to property (see CPLR 214 [4]). The applicable statute of limitations for breach of fiduciary duty varies, however (see generally IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139-140 [2009]). We agree with Supreme Court that as plaintiffs claim for breach of fiduciary duty is based on allegations of fraud, the six-year limitations period of CPLR 213 (8) applies (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d at 139; Kaufman v Cohen, 307 AD2d 113, 119 [2003]).
The six-year limitations period applies to a claim for breach of
Defendants further contend that the amendment lacks merit due to plaintiffs failure to allege the elements of fraud with sufficient specificity, as CPLR 3016 (b) requires that “the circumstances constituting the wrong shall be stated in detail.” We disagree, noting that “[i]t is impossible to state in detail the circumstances constituting fraud when those circumstances are peculiarly within the knowledge of the party moving for summary relief’ (P.S. Auctions v Exchange Mut. Ins. Co., 105 AB2d 473, 475 [1984]; see Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 194 [1968]). In a case such as this, the specificity requirement is not to be so strictly interpreted “ ‘as to prevent an otherwise valid cause of action’ ” (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 [2008], quoting Lanzi v Brooks, 43 NY2d 778, 780 [1977]). The heart of plaintiffs complaint is his claim that factual details about the venture
Defendants’ version of events differs substantially from plaintiff’s. The parties’ competing claims as to plaintiff’s contributions to the partnership, his knowledge and expectations when he withdrew, Dailey’s role in the transactions, and the extent of Boni’s knowledge of A&D’s affairs distill to material disputes of fact that, while supporting the denial of defendants’ summary judgment motions, do not preclude the proposed amendment. The court’s “threshold evaluation” (CFJ Assoc. of N.Y. v Hanson Indus., 260 AD2d 917, 920 [1999]) of the merits of the proposed amendment is not to be used as a pretext for trying the claim (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025:11). Plaintiff met his burden to support his proposed amendment with an evidentiary showing of the prima facie basis for his claim that consisted of more than conclusory allegations (see Curtin v Community Health Plan, 276 AD2d 884, 886 [2000]; Pettengill v Sissman, 267 AD2d 767, 768 [1999]) and, thus, Supreme Court did not abuse its discretion in permitting the amendment.
As to the imposition of costs and fees, leave to amend pleadings may be conditioned “upon such terms as may be just including the granting of costs” (CPLR 3025 [b]). However, any appearance that a party is being punished for asserting his or her legal rights should be avoided, especially where, as here, the
Cardona, P.J., Mercure, Peters and Kavanagh, JJ., concur. Ordered that the order is modified, on the facts, without costs, by reversing so much thereof as directed plaintiff to pay costs and counsel fees incurred by defendants in filing their motions for summary judgment, and, as so modified, affirmed.
*.
Dailey avers by affidavit that he acted as counsel for both A&D and defendant Boni Enterprises, LLC at times relevant to the action, but that the representation “did not overlap at any time where the entities had potentially conflicting interests.”