On August 9, 2023, the Second Department issued a decision in Statharos v. Statharos, 2023 NY Slip Op. 04226, holding that when a breach of fiduciary claim is based on fraud, the statute of limitation is that of fraud, explaining:
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 an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8).
Here, allegations of actual fraud are essential to, not merely incidental to, the breach of fiduciary duty cause of action. Consequently, the limitations period set forth in CPLR 213(8) is applicable. CPLR 213(8) provides, in part, that the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff discovered the fraud, or could with reasonable diligence have discovered it. The discovery accrual rule also applies to fraud-based breach of fiduciary duty claims. An inquiry as to the time that a plaintiff could, with reasonable diligence, have discovered the fraud turns upon whether a person of ordinary intelligence possessed knowledge of facts from which the fraud could be reasonably inferred. Here, the plaintiffs discovered the alleged fraud in 2019 and the cause of action was timely commenced within two years. Accordingly, the Supreme Court erred in finding that the breach of fiduciary duty cause of action was time-barred.
(Internal quotations and citations omitted).