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TRANSPORT WORKERS UNION OF AMERICA LOCAL 100 AFL-CIO et al., Appellants-Respondents, v. ALAN G. SCHWARTZ et al., Respondents-Appellants, and STEVEN M. ROSS, Respondent.

The Commercial Division properly found that the first and fourth causes of action, alleging breach of fiduciary duty and seeking damages and an accounting and disgorgement of commissions, were timely as to the Schwartz defendants because they had a continuous fiduciary relationship with plaintiffs until 2000 ( see Zaref v. Berk Michaels, 192 AD2d 346, 348). Those defendants were equitably estopped from asserting a statute-of-limitations defense as to the second cause of action for breach of contract ( see Simcuski v. Saeli, 44 NY2d 442, 448-449). The civil conspiracy claims against defendant Ross in the fourth and fifth causes of action were properly dismissed inasmuch as he was a nonfiduciary against whom nothing more than knowing acquiescence was alleged therein ( see Kaufman v. Cohen, 307 AD2d 113, 126), as was the General Business Law § 349 claim, inasmuch as the transaction at issue was not "consumer-oriented" ( see New York Univ. v. Continental Ins. Co., 87 NY2d 308, 321).

However, the fifth cause of action, alleging actual fraud, was erroneously dismissed under the statute of limitations (CPLR 213) on an apparent misreading of plaintiffs' argument. The court noted that plaintiffs had conceded, in their opposing memorandum of law, having discovered defendants' fraud in 2000. What the cited passage actually said was that defendant Schwartz's fiduciary relationship with plaintiffs ended in 2000, not that the fraud was discovered at that time. While we have been advised that the remaining causes of action, including the fourth cause of action for constructive fraud, have subsequently been dismissed on a motion for summary judgment, the question of whether this claim of actual fraud should remain is best left to the Commercial Division.

We have considered the parties' remaining contentions for affirmative relief and find them unavailing.

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TRANSPORT WORKERS UNION OF AM. v. SCHWARTZ
(Apr 19, 2005)