                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 22, 2015                   520778
________________________________

In the Matter of the
   Dissolution of THERM, INC.

CHERYL BOICE et al.,
   Individually and on Behalf
   of THE SPROLE TRUST,                     MEMORANDUM AND ORDER
                    Appellants;

ROBERT SPROLE II et al.,
                    Respondents.
________________________________


Calendar Date:   September 10, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                             __________


      Paykin, Krieg & Adams, LLP, White Plains (Joseph N. Paykin
of counsel), for appellants.

      Hancock Estabrook, LLP, Syracuse (Janet D. Callahan of
counsel), for respondents.

                             __________


Lahtinen, J.P.

      Appeal from an order of the Supreme Court (Rumsey, J.),
entered August 27, 2014 in Tompkins County, which, in a
proceeding pursuant to Business Corporation Law article 11, among
other things, partially granted respondents' motion to dismiss
the amended petition.

      Robert R. Sprole (hereinafter decedent) founded Therm, Inc.
in the 1930s, and he died in 1992. Petitioners include two of
decedent's three daughters, and respondents are his son, Robert
Sprole II, and grandson, Robert Sprole III. As relevant here,
                              -2-                520778

decedent created a trust in 1988 funded with about $3 million
and, in 1991, he formed the Sprole Trust into which he
transferred the earlier trust as well as 30,950 shares of Therm,
representing 63.3% of outstanding voting shares. The Sprole
Trust purportedly provided that, upon decedent's death, the
trustee would pay to the executor of decedent's estate sufficient
funds to cover estate taxes, and then the trust would distribute
its Therm stock 40% to Sprole II and 20% to each of decedent's
daughters.

      Following decedent's death, Sprole II was the sole trustee
of the trust, executor of decedent's estate (reportedly with
gross assets of $11,680,040) and chair and chief executive
officer of Therm. Sprole III was an officer and director of
Therm. Petitioners commenced this proceeding in November 2013,
and the many assertions in their detailed amended petition
included that the estate taxes had been purposefully delayed and
not paid in full to avoid distributing stock under the trust, as
well as allegations of various actions, manipulations and self-
dealing by respondents resulting in petitioners being deprived of
assets that they should have received from the trust, estate and
corporation.

      Respondents made a pre-answer CPLR 3211 motion to dismiss,
which Supreme Court granted in part by dismissing two of
petitioners' four causes of action. The court further held that,
as for the two remaining causes of action (breach of fiduciary
duty and common-law dissolution of Therm), petitioners were
barred by the statute of limitations from using any acts in
support thereof that occurred more than six years before
commencement of this proceeding. Petitioners appeal, limiting
their argument to that part of the order precluding them from
presenting proof of events occurring prior to November 26, 2007.

      Although "New York law does not provide a single statute of
limitations for breach of fiduciary duty claims [and] the choice
of the applicable limitations period depends on the substantive
remedy that the plaintiff seeks" (IDT Corp. v Morgan Stanley Dean
Witter & Co., 12 NY3d 132, 139 [2009]), the parties do not
dispute that a six-year period applies to these two remaining
                                -3-              520778

causes of action.1 However, the statute of limitations for a
claim alleging a breach of fiduciary duty is tolled until there
has been an open repudiation by the fiduciary or the relationship
has otherwise been clearly terminated (see Matter of Barabash, 31
NY2d 76, 80 [1972]; Matter of Baird, 58 AD3d 958, 959 [2009];
People v Ben, 55 AD3d 1306, 1308 [2008]; Matter of Rodken, 270
AD2d 784, 785 [2000]; see also Access Point Med., LLC v Mandell,
106 AD3d 40, 44-45 [2013]).

      There is nothing in this record indicating that
respondents' relevant fiduciary roles have terminated. Although
many of the actions about which petitioners complain were done
openly, petitioners also allege that they were repeatedly assured
that such actions were ultimately in their best interests. The
amended petition alleges that respondents have not to date
repudiated their positions as fiduciaries. That allegation is
not denied in this pre-answer motion, which was supported only by
an attorney's affirmation and memorandum of law. On this record
and in this procedural posture, we find that it was error to
conclude that petitioners were barred from presenting any proof
of acts occurring more than six years before commencement (see
New York State Workers' Compensation Bd. v Consolidated Risk
Servs., Inc., 125 AD3d 1250, 1252-1253 [2015]; see also
Westchester Religious Inst. v Kamerman, 262 AD2d 131, 131-132
[1999]; Matter of Winne, 232 AD2d 956, 957-958 [1996]). The
remaining argument is academic.

        Garry, Lynch and Devine, JJ., concur.




    1
        The cause of action for common-law dissolution is
premised, in part, upon allegations of various fiduciary breaches
(see generally Westchester Religious Inst. v Kamerman, 262 AD2d
131, 131-132 [1999]).
                              -4-                  520778

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as limited the first and
second causes of action to events occurring on or after November
26, 2007, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
