Nicholas L. Garcea, the petitioner in this proceeding (hereinafter referred to as "Nicholas") was 12 years old when his father Nicholas C. Garcea died on May 28, 1989. Nicholas' father died without a Will and Nicholas and his sister Lisa were his only distributees. Nicholas' father had also named Nicholas as the beneficiary of a life insurance policy. Thereafter, Nicholas' mother Nidia Demma ^[FN1] (herein "Nidia") petitioned to be named guardian of Nicholas' property which consisted of not only any assets that Nicholas might eventually receive under the law of intestacy from his father's estate, but also the proceeds of a life insurance policy of which he was named beneficiary.

By Decree dated February 26, 1990 Nidia was named guardian of Nicholas' property and a bond was dispensed with on condition that she collect monies of her ward (Nicholas) jointly with Citibank New York State ("Citibank"). The record reveals that on May 29, 1990 Nidia deposited life insurance proceeds of $54,097.00 into a guardianship account with Citibank for the benefit of Nicholas.^[FN2]

On February 9, 1995, one day after Nicholas turned 18, Nidia signed a petition to close the guardianship account. In this petition Nidia stated that she then had under her custody and control $75,922.38 in an account at Chase Manhattan Bank.^[FN3] In addition, [*2]Nidia's petition stated that she had informally accounted to Nicholas for these funds. Nicholas signed the second page of the petition under the section entitled "CONSENT OF INFANT". The language of this section clearly stated Nicholas was joining in the petition and consenting to the relief requested. More importantly for purposes of this proceeding, Nicholas acknowledged that Nidia had informally accounted to him for the administration of the insurance proceeds received by her as guardian.^[FN4]

The petition to close the guardianship account was filed on February 22, 1995 and on March 8, 1995, the Court issued a Decree authorizing and directing Nidia to pay Nicholas all monies in her possession or in any bank.^[FN5] Over 17 years later, on July 13, 2012, Nicholas filed the instant proceeding wherein he claims, among other things, that he never received the insurance proceeds. He also asserts he was not aware of the petition to close the guardianship account, nor the subsequent Decree directing its closure, until November, 2011. At that time he was reviewing an abstract of title to the real property once owned by his late father and claims only then did he notice the existence of a proceeding in this Court concerning guardianship of his property. However, it is important to note that Nicholas does not dispute that he signed the petition containing his consent to close the guardianship account.

Nicholas instituted the instant proceeding against Nidia and JPMorgan Chase Bank, N.A. (sued herein as "JPMorgan Chase & Co. N.A." and hereinafter referred to as the "Bank") as the eventual successor in interest to Citibank. In this proceeding he seeks, among other relief, an Order 1) finding both Nidia and the Bank jointly and severally in contempt of the Decree of this Court dated March 8, 1995; and 2) directing Nidia "and/or" the Bank to return to him the proceeds of the life insurance policy, $75,922.38, with interest from the date of the Decree.

At the outset of this litigation, both the Bank and Nidia moved for dismissal. However, the Court denied the motions in order to allow the parties an opportunity to conduct discovery. After discovery was completed, the Bank and Nidia both moved for dismissal once again. The Bank and Nicholas have now settled and so the only motion pending before the Court is Nidia's motion to dismiss.

In support of her motion to dismiss, Nidia asserts three grounds: 1) she cannot be found to be in contempt of the March 8, 1995 Decree because it is "not clear from the decree whether it was the guardian or the Bank which was ordered to pay the funds to the former infant"; 2) the proceeding is barred by the applicable Statute of Limitations; and

ORDERED AND DECREED, that said guardian of said former infant, NICHOLAS LOUIS GARCEA, is hereby authorized and directed to pay to said former infant all monies in the guardian's possession or in any bank standing to credit as such guardian of said infant and to transfer and deliver to said former infant all other property of every character in the guardian's possession belonging to the former infant, and to execute and deliver any and all assignments or other instruments in writing necessary or requisite to transfer the legal title and possession of said property to the former infant, and it is further

While the language of the Decree may be ambiguous as to whether the bank in possession of the funds was to pay and deliver the same directly to Nidia or to Nicholas, the Court finds no ambiguity in the language directed at Nidia. The Decree unequivocally mandates that Nidia, as guardian, pay to Nicholas all monies in her possession or in any bank account maintained by her as guardian for Nicholas. Whether the Bank issued payment to Nidia or to Nicholas directly, Nidia was not relieved of her duty to ensure that the funds in her possession, or in the Bank, were ultimately paid to Nicholas. Since the language of the Decree is not ambiguous regarding Nidia's duties as guardian, Nicholas' request that she be held in contempt cannot be dismissed on that basis. However, the Court must next consider whether the defenses of Statute of Limitations and laches apply.

Nidia next asserts that both the request for a finding of contempt and for return of the life insurance proceeds are barred by the Statute of Limitations. As to contempt, Nidia has not cited and the Court is not aware of any authority which provides that the Statute of Limitations is a defense to such a proceeding. At this juncture, the Court only addresses whether there is a Statute of Limitations defense to Nicholas' request for an Order directing Nidia to return the life insurance proceeds to him with interest.

In their respective arguments on the Statute of Limitations issue, both parties incorrectly characterize the within proceeding as one seeking to compel Nidia to account

Instead, Nicholas has requested an Order directing Nidia to return the life insurance proceeds to him with interest premised on an alleged breach of fiduciary duty. Unfortunately, New York law does not provide any single limitations period for breach of fiduciary duty claims. Several Courts have held that breach of fiduciary duty claims are governed by a three year limitations period. See Loengard v. Santa Fe Industries, Inc., 573 F Supp 1355, 1359 [SDNY 1983 and citations therein]. Numerous other New York Courts have applied a six-year limitations period. See Zola v. Gordon, 685 F Supp 354, 374 [SDNY 1988]; Public Service Co. of Colorado v. Chase Manhattan Bank, N.A., 577 F Supp 92, 109 [SDNY 1983].

Since over 17 years elapsed since this proceeding was instituted, the Court also need not decide whether a three or six year limitations period applies. It only needs to decide when the breach of fiduciary duty claim accrued. In that regard numerous New York Courts have held that the Statute of Limitations for breach of fiduciary duty does not commence until the aggrieved party has actual or constructive knowledge of the breach. Public Service Co. of Colorado v. Chase Manhattan Bank, N.A., supra, at 109.

In the Memorandum of Law in support of her motion to dismiss, Nidia asserts that Nicholas had actual knowledge of his right to receive the monies when he signed the petition on February 9, 1995. In his opposing Memorandum of Law, Nicholas agrees that the limitations period began when he discovered he had a right to these funds (citing C.P.L.R. §206). However, he asserts that he did not discover this right until November, 2011 when he became aware of the existence of the guardianship proceeding.

As previously indicated, Nicholas does not dispute that it is his signature on the petition to close the guardianship account.^[FN6] However, he asserts that he should not be charged with knowledge of its contents because he did not read it.

"Under New York law, a party is under an obligation to read a document before he or she signs it, and a party cannot generally avoid the effect of a [document] on the ground that he or she did not read it or know its contents.". Brandywine Pavers, LLC v. Bombard, 108 AD3d 1209 [4th Dept 2013]. "Under long accepted principles one who signs a document is, absent fraud or other wrongful act of the other contracting party, bound by its contents". (id.). "When a party signs a document without having read its contents and without any valid excuse for having failed to do so, such party is chargeable with knowledge of its terms and is conclusively bound thereby." Haynes v. Haynes, 2003 NY Slip Op 50867[U](internal citations omitted).

Nicholas has not alleged any fraud or wrongful acts on the part of Nidia inducing him to sign the petition, nor has he offered any other legally valid excuse for having failed to read the document before signing it. On the date he signed the petition he was legally an adult and competent. Therefore, Nicholas is charged with knowledge of the petition's contents. Accordingly, the Court finds that the Statute of Limitations began to run in 1995 after Nicholas signed the petition to close the guardianship account. Therefore, his request for an Order directing return of these monies is time barred whether a three or six year limitations period applies.

The question remaining for discussion is whether the doctrine of laches applies in this case.

"The doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in [*4]prejudice to a party. The mere lapse of time without a showing of prejudice will not sustain a defense of laches." Skrodelis v. Norbergs, 272 AD2d 316 [2d Dept 2000] (internal citations omitted). "Prejudice may be established by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay." (id.)

Nidia alleges that she complied with the 1995 Decree ordering her to pay Nicholas the funds to which he was entitled. At her deposition she testified that she and Nicholas went to Chase Manhattan Bank together and withdrew the funds and immediately thereafter they went to Marine Midland Bank in the New Hartford Shopping Center where Nicholas deposited the funds into an account in his name. Nicholas testified at a deposition that he didn't know whether he ever had a bank account at Marine Midland Bank in the New Hartford Shopping Center.

The record before the Court establishes that the most compelling evidence with which Nidia sought to prove her defense, namely the bank records from Chase Manhattan and Marine Midland, was destroyed long ago. Indeed, the law mandates that banks only keep records for six years. Banking Law §128 and 12 U.S.C. §1829b(g). Although both Chase Manhattan and Marine Midland had bank policies requiring retention of records somewhat longer than six years, neither bank currently had any records in their possession concerning these accounts.^[FN7] Nidia is therefore prejudiced by a loss of evidence in this proceeding.

As indicated in the discussion under Section II. above, Nicholas is legally charged with knowledge of the guardianship account as of the date he signed the Petition to close it on February 9, 1995. His petition seeking to punish Nidia for her alleged contempt was filed more than seventeen years later and constitutes unreasonable delay which the Court finds has prejudiced Nidia. It has been held that laches is a defense to a request to hold a party in contempt. Noy v. 765 9th Ave. Corp., 281 AD2d 232 [1st Dept 2001].

The Court also notes that, for the same reasons, laches would also bar Nicholas' request for an Order directing return of the proceeds.

Nidia's motion to dismiss Nicholas' demand in the petition that she turn over the life insurance proceeds is granted based on the Statute of Limitations and laches. Nidia's motion to dismiss Nicholas' demand in the petition that she be held in contempt is granted on the ground of laches. Nidia's counsel is directed to submit a proposed Order, on notice, in accordance with this Decision.

Utica, New York

HON. LOUIS P. GIGLIOTTI, [*5]SURROGATE