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ALTHOUGH THE TRUSTEE DID NOT PROVIDE AN ACCOUNTING, HE NEVER REPUDIATED HIS FIDUCIARY DUTIES; THEREFORE THE SIX-YEAR STATUTE OF LIMITATIONS FOR AN ACCOUNTING WAS NOT TRIGGERED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the cause of action for an accounting of a trust should not have been limited to the six years before the filing of the complaint. Although the trustee did not provide a requested accounting. the trustee did not openly repudiate his fiduciary duties, so the six-year statute of limitations was never triggered:

The statute of limitations for a cause of action seeking an accounting is six years (see CPLR 213 [1] … ). It is well settled that the limitations period begins to run only when ” ‘the trustee openly repudiates his [or her] fiduciary obligations’ ” and ” ‘a mere lapse of time is insufficient without proof of an open repudiation’ ” … . “The party seeking the benefit of the statute of limitations defense bears the burden of proof on the issue of open repudiation” … . Here, defendants “failed to sustain their burden of establishing that [defendant] had openly repudiated [his] fiduciary obligations to [plaintiffs] so as to start the statute of limitations clock” … . Although defendant failed to provide plaintiffs with an accounting, he never outright refused to do so. Further, defendant continued to conduct his duties as trustee by handling the taxes and expenses for the trust, and making the necessary disbursements to plaintiffs as beneficiaries. Thus, the cause of action for an accounting had not accrued at the time plaintiffs commenced this action. Massey-Hughes v Massey, 2021 NY Slip Op 07405, Fourth Dept 12-23-21

 

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