Livadiotakis v. Tzitzikalakis

In an action, inter 370 alia, to recover damages for fraud and for an accounting, the plaintiffs appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated July 25, 2001, which granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint as time-barred. Ordered that the order is affirmed, with costs. The plaintiffs’ action, commenced in November 2000, was properly dismissed as time-barred (see CPLR 213; 203 [f|; Dryden Hotel Assoc. v Grimbilas, 226 AD2d 163). Any cause of action for an accounting of assets of an alleged partnership accrued in or before March 1994 when the plaintiffs were divested of any interest in the alleged partnership (see Partnership Law § 60; Dryden Hotel Assoc. v Grimbilas, supra). The plaintiff Malaxa Acquisition Company commenced an action in 1997 relating to the same subject matter which was dismissed for failure to comply with a demand for a complaint. Accordingly, the action was commenced more than six years after the causes of action accrued and more than two years after the plaintiffs discovered any alleged fraud. The plaintiffs’ contention that the branch of the motion which was pursuant to CPLR 3211 (a) (5) was rendered academic by service of an amended complaint is without merit (see Matter of Sage Realty Corp. v Proskauer Rose Goetz & Mendelsohn, 251 AD2d 35, 38, revd on other grounds 91 NY2d 30; Baker v Reis, 223 App Div 842; Matter of DAddario v McNab, 73 Misc 2d 59, 61). It has long been the rule in this Judicial Department that a motion to dismiss which is addressed to the merits may not be defeated by an amended pleading (see Baker v Reis, supra; Matter of DAddario v McNab, supra). A motion to dismiss an action as time-barred is addressed to the merits (see Matter of Karmel v Delfino, 293 AD2d 473). Santucci, J.P., O’Brien, Goldstein and Cozier, JJ., concur.