Order, entered on November 13, 1962, granting the motion of defendants-respondents for an order to dismiss the first cause of action of the second amended complaint, under rule 107 of the Rules of Civil Practice, on the ground that the cause of action had not accrued within the time limited by law for the commencement of an action thereon, unanimously affirmed, with $20 costs and disbursements to defendants-respondents. The problem of characterizing properly a diversion of corporate opportunity under the applicable Statutes of Limitations, depending upon the remedies available, is not free from difficult problems, if considered as a novel question. It is not a novel question; this court, in Augstein v. Levey ( 3 A.D.2d 595, 599-600, affd. 4 N.Y.2d 791) had occasion to determine the question explicitly, albeit alternatively.
Concur — Botein, P.J., Breitel, Stevens, Eager and Steuer, JJ. [ 37 Misc.2d 347.]