Upon the following papers numbered 1 toread on these motionsto reargue; Order to Show Cause and supporting papers 1-3; Opposing papers:6-7; Reply papers:8-9 ; Notice of Cross Motion and supporting papers:10-12 ; Opposing papers: 13-14; 15-16; Reply papers:; Other papers: 17-21; copy of No.003 motion; opposing papers and replies; and after hearing counsel at oral argument held herein on March 28, 2014, it is

ORDERED that those portions of this motion (#004) wherein the plaintiff seeks leave to reargue the portions of her prior motion for leave to amend her complaint (#003) to assert claims against the bank defendants sounding in aiding and abetting defendant Delta Kew's breach of fiduciary duties, which amendment was denied by order of the court dated October 16, 2013, is considered under CPLR 2221 and is granted. Upon reargument, the court denies the proposed amendments as they are barred by the applicable statute limitations; and it is further

ORDERED that remaining portions of this motion (#004) in which the plaintiff seeks leave to reargue those portions of her prior motion for leave to amend so as to assert claims against the bank defendants' claim that they aided and abetted Delta Kew's waste of the subject real property, which amendment was denied in the October 16, 2013 order, is considered under CPLR2 221 and is denied; and it is further

ORDERED that the cross motion (#005) by defendant, Delta Kew Holding Corp., for leave to reargue those portions of the plaintiff's prior motion for leave to amend her complaint to add a partition claim against Delta Kew, which amendment was granted by this court in its October 16, 2013 order, is considered under CPLR 2221 and is denied.

This hybrid special proceeding and action for declaratory and other relief was commenced by the plaintiff in May of 2012. Therein, the plaintiff sought declaratory and injunctive relief with respect to her rights and interests in a parcel of real property in Queens County, New York in which she claims a one-third interest as tenant in common with defendant Delta Kew. She also sought money damages from her co-tenant under tort theories sounding in breach of fiduciary duties and waste of the subject premises, the cancellation of a 99 year lease and the cancellation of mortgages issued by the bank defendants. Following the dismissal and/or withdrawal of certain of her claims, the plaintiff moved for leave to amend her complaint. By order dated October 16, 2013, the plaintiff was partially granted leave to file and serve an amended petition/complaint to add a claim against Delta Kew for partition of the parcel. Her application to add tort claims against the defendant banks sounding in aiding and abetting Delta Kew's waste of the premises and its breach of fiduciary duties [*2]were denied in the October 16, 2013 order.

By the instant motion (#004), the plaintiff seeks leave to reargue those portions of her prior motion wherein the court denied the proposed amendment to add aiding and abetting claims against the banks. The bank defendants oppose on several grounds including that the plaintiff's proposed aiding and abetting claims are barred by the three year statute of limitations period applicable thereto which began to run on the date the last mortgage loan which was made in December of 2006. Delta Kew cross moves (#005) for leave to reargue those portions of the plaintiff's prior motion for leave to add a partition claim against it. For the reasons stated below, these applications are denied except to the limited extent set forth below.

It is well established that motions for reargument are addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or the law or for some other reason, mistakenly arrived at its determination (see Butler v City of Rye Planning Com'n, 114 AD3d 937, 980 NYS2d 831 [2d Dept 2014] Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 916 NYS2d 821 [2d Dept. 2011] Everhart v County of Nassau, 65 AD3d 1277, 885 NYS2d 765 [2d Dept 2009] McDonald v Stroh, 44 AD3d 720, 842 NYS2d 727 [2d Dept 2007]). CPLR 2221 provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). A motion for leave to reargue is thus not one which provides an unsuccessful party with successive opportunities to reassert or propound the same arguments previously advanced. Nor is it one that provides a platform for the presentation of arguments different from those already presented (see V. Veeraswamy Realty v Yenom Corp., 71AD3d 874, 895 NYS2d 860 [2d Dept 2010] Woody's Lumber Co., Inc. v Jayram Realty Corp., 30 AD3d 590, 817 NYS2d 391[2d Dept 2006] Williams v Board of Educ. of City School Dist. of New York City, 24 AD3d 458, 805 NYS2d 126 [2d Dept 2005] Simon v Mehryari, 16 AD3d 543, 792 NYS2d 543 [2d Dept 2005]).

Here, the cross moving papers (#005) submitted by defendant Delta Kew failed to demonstrate that this court misapprehended or overlooked material facts presented on the prior application, that it misunderstood or overlooked the legal advance or that it misapplied controlling principles of law in arriving at its determination to grant leave to add the partition claim. Nor did defendant Delta Kew establish that, for some other reason, the court mistakenly arrived at such determination. Delta Kew's cross motion (#005) for leave to reargue those portions of the prior application for leave to amend are thus denied.

Also denied are those portions of the plaintiff's motion (#004) wherein she seeks reargument of the her prior motion for leave to amend so as to assert against the bank defendants a claim that they aided and abetted Delta Kew's waste of the subject real property by allowing illegal, bawdy house activities thereon. The plaintiff failed to demonstrate that this court misapprehended or overlooked material facts or the arguments presented or that it misapplied controlling principles of law in arriving at its determination to deny the proposed amendment at ¶ 51 new Sixth Cause of Action to include an aiding and abetting claim premised upon Delta Kew's alleged waste of the [*3]subject premises. Nor did the plaintiff establish that other reasons caused the court to mistakenly arrive at such determination.

The plaintiff did, however, establish that the court overlooked and/or misapprehended facts presented in support the plaintiff's proposed new aiding and abetting fiduciary duties claim that were advanced in ¶¶ 48-49 of the Fifth Cause of Action. On this motion, it is now clear that such claim rested not only upon the claim that by lending Delta Kew mortgage monies, the defendant banks aided and abetted Delta Kew's breach of co-tenant fiduciary duties in that it enabled it to put the subject premises to illegal, bawdy house type uses - but also - upon the plaintiff's claim that the mortgage monies loaned by the defendant banks enabled Delta Kew to allegedly encumber 100% of the premises with mortgages and liens without the plaintiff's knowledge and consent (see e.g. p. 5 of the affirmation of plaintiff's counsel in support of motion [#003] to amend and reply memo at page 6). The court thus grants reargument only as to this two prong aiding and abetting fiduciary duties claim, for which, leave to amend was denied by the court in its October 16, 2013 order. Upon reargument, the court finds that the two prong aiding and abetting fiduciary duties claim is not devoid of merit or palpably improper due to legal insufficiency. It nevertheless denies the proposed amendment of the Fifth Cause of Action to include this two prong aiding and abetting claim as such claim is barred by the three year statute of limitations that is applicable thereto.

The plaintiff does not deny the banks' claim that the proposed aiding and abetting breach of fiduciary duties claim is barred by the three year statute of limitations and admits that it was asserted by the banks in their answer and in opposition to the plaintiff's prior motion to amend (see plaintiff's Reply Memo of Law p.2, dated January 15, 2014). Instead, the plaintiff challenges the applicability of the statutory time bar on both procedural and substantive grounds.

The plaintiff first objects to the banks' reassertion of its statute of limitations defense on the procedural ground that this court "implicitly" rejected this defense in its October 16, 2013 order. This claim is, however, without merit as the court did not address this asserted defense in the order dated October 16, 2013. Instead, it found that all proposed aiding and abetting claims were devoid of merit due to legal insufficiency which alone warranted denial of the amendment. In light of the grant of reargument to the plaintiff, which is limited to the application to add the two prong aiding and abetting of fiduciary duty claim against the banks and because the banks have reasserted such defense in opposition to this motion, the statute of limitations defense is properly before the court. It is also relevant and material to the court's determination of the pending application for leave to amend since the court may consider whether a claim added by such amendment is time barred under an applicable statute of limitations or whether it is saved therefrom by a toll or exception (see Carroll v Motola, 109 AD3d 629, 970 NYS2d 820 [2d Dept 2013] Comice v Justin's Rest., 78 AD3d 641, 909 NYS2d 670 [2d Dept 2010] Arsell v Mass One, LLC, 73 AD3d 668, 900 NYS2d 380 [2d Dept 2010]).

Substantively, the plaintiff challenges the validity of the asserted statute of limitations defense as she did on her original motion for leave to amend on the following grounds: 1) that unless and until the Banks and Delta Kew record a document that plainly recites that the mortgages do not [*4]encumber the plaintiff's interest in the subject premises, the plaintiff's interest remains clouded; 2) that the conduct complained of constitutes a continuous wrong for which no period of limitations applies; and 3) the bank defendants are precluded from raising the statute of limitations defense under principles of equitable estoppel.

The court, however, finds that the proposed two prong aiding and abetting fiduciary duties claim is barred under the three year statute of limitations which is applicable thereto underCPLR 214(4).

Viable claims for a breach of fiduciary duty rest upon the existence of a fiduciary relationship, misconduct by the defendant and damages that were directly caused by the defendant's misconduct (see Guarino v North County Banking Corp., 79 AD3d 805, 915 NYS2d 84 [2d Dept 2010] Barrett v Freifeld, 64 AD3d 736, 883 NYS2d 305 [2d Dept 2009]). Viable claims for the recovery of damages for the aiding and abetting of any tort rest upon allegations of fact constituting the elements of the existence of the underlying tort, knowledge thereof by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the tortious act (see e.g. Winkler v Battery Trading, Inc., 89 AD3d 1016, 934 NYS2d 199 [2d Dept 2011] (aiding and abetting fraud); IDX Capital, LLC v Phoenix Partners Group, 83 AD3d 569, 922 NYS2d 304 [1st Dept 2011] (aiding and abetting tortious interference ); AHA Sales, Inc. v Creative Bath Prod., Inc., 58 AD3d 6, 867 NYS2d 169 [2d Dept 2008] (aiding and abetting breach of fiduciary duties).

A claim that a person aided and abetted a tort is governed by the same statute of limitations that is applicable to the underlying tort allegedly aided and abetted (see Baron v Galasso, 83 AD3d 626, 921 NYS2d 100 [2d Dept 2011] HSBC Bank v Kinpit Realty Inc., 39 Misc 3d 1227[a], 971 NYS2d 71 [Sup. Ct. Queens County 2013]). New York law does not provide a single statute of limitations for causes of action alleging a breach of fiduciary duty. Rather, the choice of the applicable limitations period depends on the substantive remedy sought by the plaintiff (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 879 NYS2d 355 [2009] Loengard v Santa Fe Indus., 70 NY2d 262, 266, 519 NYS2d 801 [1997]). "Where the remedy sought is purely monetary in nature, courts construe the action as alleging injuries to property' within the meaning of CPLR 214(4), which has a three-year limitations period" (Monaghan v Ford Motor Co., 71 AD3d 848, 850, 897 NYS2d 482 [2d Dept 2010] see Yatter v Morris Agency, 256 AD2d 260, 261, 682 NYS2d 198 [1st Dept 1998]). "Where, however, the relief sought is equitable in nature, the six-year limitations period of CPLR 213(1) applies" (Monaghan v Ford Motor Co., 71 AD3d 848, supra). In cases wherein 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) (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 140, supra), but the three year negligence statute applies where the fraud allegation is only incidental to the allegation of breach of fiduciary duty, and not essential to it (see Carbon Capital Mgt., LLC v American Exp. Co., 88 AD3d 933, 932 NYS2d 488 [2d Dept 2011] Monaghan v Ford Motor Co., 71 AD3d 848, supra; Kaufman v Cohen, 307 AD2d 113, 119, supra; Kaszirer v Kaszirer, 286 AD2d 598, 730 NYS2d 87 [1st Dept 2001]). Here, there are no allegations of fraud and the remedy sought under the proposed, two prong aiding and abetting breach of fiduciary claim is purely monetary in nature. The three year statutory limitations period [*5]provided by CPLR 214(4) is thus applicable.

"[A]s a general proposition, a tort cause of action cannot accrue until an injury is sustained" and such injury, rather than the wrongful act of defendant or discovery of the injury by plaintiff, is the relevant date for marking accrual" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94, 595 NYS2d 931 [1993]). Accordingly, where damage is an essential element of a tort, the claim does not accrue at the time of the defendant's wrongful act or the plaintiff's discovery of the injury, but when harm is sustained (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 140, supra; Kronos, Inc. v AVX Corp, 81 NY2d 90, supra; Bonded Waterproofing Serv., Inc. v Anderson-Bernard Agency, Inc., 86 AD3d 527, 927 NYS2d 133 [2d Dept 2011] Lewiarz v Travco Ins. Co., 82 AD3d 1464, 919 NYS2d 227 [3d Dept 2011] Bond v Progressive Ins. Co., 82 AD3d 1318, 917 NYS2d 756 [3d Dept 2011] Schultes v Kane, 50 AD3d 1277, 1278, 856 NYS2d 684 [3d Dept 2008]).

Claims for a breach of fiduciary duty rest upon the existence of a fiduciary relationship, misconduct by the defendant and damages that were directly caused by the defendant's misconduct (see Guarino v North County Banking Corp., 79 AD3d 805, supra; Barrett v Freifeld, 64 AD3d 736, supra). Viable claims for the recovery of damages for the aiding and abetting of a tort rest upon allegations of fact constituting the elements of the existence of the underlying tort, knowledge thereof by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the tortious act (see e.g. Winkler v Battery Trading, Inc., 89 AD3d 1016, supra, (aiding and abetting fraud); IDX Capital, LLC v Phoenix Partners Group, 83 AD3d 569, supra, (aiding and abetting tortious interference); AHA Sales, Inc. v Creative Bath Prod., Inc., 58 AD3d 6, supra, (aiding and abetting breach of fiduciary duties). As with other torts claims, in which damages is an essential element, a claim for breach of fiduciary duties "is not enforceable until damages are sustained" (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 140, supra). The applicable statute of limitations thus begins to run only when damages are sustained (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94, supra; see also Bonded Waterproofing Servs., Inc. v Anderson—Bernard Agency, Inc., 86 AD3d 527, supra; Lewiarz v Travco Ins. Co., 82 AD3d 1464, supra).

To determine timeliness, the court must consider whether plaintiff's complaint, as a matter of law, may be read to allege damages suffered so early as to render the claim time-barred (see Kronos, Inc. v AVX Corp., 81 NY2d 90, 94, supra). Upon a reading of the plaintiff's proposed amended complaint, it appears that the plaintiff's two prong aiding and abetting breach of fiduciary duties claim accrued on December 28, 2006, the last date on which the banks lent Delta Kew mortgage monies, as the lien of such mortgage allegedly gave rise to a cloud upon her title for which damages are demanded. Since this action was commenced in 2012, which was long past the expiration of the three year limitations period, the bank defendants established, prima facie, that the proposed new aiding and abetting fiduciary duties claim is time barred. Even if the accrual date is measured from the January 23, 2007 recording date of the December 28, 2006 mortgage, as is claimed by the plaintiff (see plaintiff's Reply Memo of Law p.4 dated January 15, 2014), the proposed claim remains time barred under the three year statutory period applicable thereto under [*6]CPLR 214(4).

It was thus incumbent upon the plaintiff to raise a question of fact on the issue of the timeliness of her proposed amendments under an exception or toll or because the action was actually commenced within the applicable limitations period (see Petito v Roberts, 113 AD3d 743, 979 NYS2d 140 [2d Dept 2014] Rakusin v Miano, 84 AD3d 1051, 923 NYS2d 334 [2d Dept 2011]). A review of the opposing papers submitted on this motion and the prior application reveal that the plaintiff failed to raise any such question of fact.

The plaintiff's contention that her proposed new aiding and abetting claim is timely because her interest in the subject property is under a continuing cloud not subject to limitation unless and until the recording of a document showing that her interest was not encumbered by the mortgage liens of the bank defendants is rejected as unmeritorious. While claims to quiet the title by the removal of a cloud thereon or by a determination of other adverse claims enjoy ten year statutes of limitations that begin to run only from the time the claimant is out of possession (see CPLR 212[a] RPAPL §311; Orange & Rockland Util. v Philwood Estates, 52 NY2d 253, 261, 437 NYS2d 291 [1981] quoting Ford v Clendenin, 215 NY 10, 16 109 NE 124 [1915] see also Beckles v George, 2008 WL 926578 [EDNY 2008]), the proposed amendment of the complaint to add the two prong aiding and abetting of breaches of fiduciary duties claim does not include any claim for a judgment quieting the plaintiff's title by removal of a cloud or otherwise. The plaintiff's reliance upon the ten year, post possession statutes of limitations applicable to quiet title claims is thus misplaced. Accordingly, the court rejects the first ground asserted by the plaintiff in opposition to the banks' statute of limitations defense.

Also rejected is the plaintiff's claim that the wrong occasioned by the banks' allegedly tortious conduct in aiding and abetting Delta Kew's breaches of fiduciary duties owed to the plaintiff is a continuous wrong which reoccurs daily. At common law, the general rule was that a cause of action accrues, except in cases of fraud, upon the violation of a legal right and in tort cases the right subject to violation is the right to be free from direct invasions of person or property (see 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48, 51, 255 NYS2d 89 [1964]). "The wrong is done, the right violated, and the cause of action complete when the invasion takes place, independently of any actual pecuniary damage" (id.). Knowledge of the invasion of a right was not considered critical in determining the time when a cause of action accrues (id.). Due to the harsh effects of this rule, exceptions were carved out by the courts and by the legislature by its enactment of various statutes (see e.g. CPLR 213[8] (fraud discovery rule); CPLR 214-a (continuous treatment doctrine); CPLR 214-b, 214-c; 214-c and 214-e (exposure to certain substances).

An early common law exception to this general rule arose in real property actions in which continuous injuries to real estate caused by the maintenance of a nuisance or acts of continuous trespass were found to generally give rise to successive causes of action under the continuous wrong doctrine (see Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024, 981 NYS2d 643 [2013] Jensen v General Elec. Co., 82 NY2d 77, 603 NYS2d 420 [1993] Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d 61, 66, 886 NYS2d 663 [2d Dept 2010]). "Where a defendant unlawfully [*7]produces some condition which is not necessarily of a permanent character and which results in intermittent and recurring injuries to another in as much as a separate and complete cause of action arises in favor of the latter every time he is injured as the result of the unlawful act" (Meruk v City of New York, 223 NY 271, 119 NE 571[1918] Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024, supra). The rule is based on the principle that continuous injuries create separate causes of action barred only by the running of the statute of limitations against each successive trespass or other continuing invasion (see 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48, supra).

The continuous wrong doctrine has been extended to claims sounding in other torts and similar claims such as violations of statutory and regulatory provisions (see Covington v Walker, 3 NY3d 287, 292, 786 NYS2d 409 [2004], cert. denied 545 U.S. 1131, 125 S.Ct. 2938 [2005] [divorce action] Capruso v Village of Kings Point, 78 AD3d 877, 912 NYS2d 244 [2d Dept 2010] [violation of public trust doctrine] Andrew Greenberg, Inc. v Svane, Inc., 36 AD3d 1094, 830 NYS2d 358 [3d Dept 2007] [misappropriation of trade secrets] State v CSRI Ltd. Partnership, 289 AD2d 394, 734 NYS2d 626 [2d Dept 2001] [regulatory violations]). "[W]here a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring within the limitations period" (DeCintio v Cohalan, 18 AD3d 872, 873, 795 NYS2d 459 [2d Dept 2005]). The repeated offenses are treated as separate rights of action and the applicable limitations period begins to run as to each upon its commission" (Covington v Walker, 3 NY3d 287, 293, supra; see Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d 61, supra; CSC Acquisition-NY, Inc. v 404 County Rd. 39A, Inc., 96 AD3d 986, 947 NYS2d 556 [2d Dept 2012] Lucchesi v Perfetto, 72 AD3d 909, 899 NYS2d 341 [2d Dept 2010]). Where applicable, the doctrine will save all claims for recovery of damages but only to the extent of wrongs committed within the applicable statute of limitations (see Sutton Inv. Corp. v City of Syracuse, 48 AD3d 1141, 853 NYS2d 233 [4th Dept 2008] see also Jensen v General Elec. Co., 82 NY2d 77, supra; CSC Acquisition-NY, Inc. v 404 County Rd. 39A, Inc., 96 AD3d 986, supra; Greco v Incorporated Vil. of Freeport, 66 AD3d 836, 886 NYS2d 615 [2d Dept 2009] Pilatich v Town of New Baltimore, 100 AD3d 1248, 954 NYS2d 663 [3d Dept 2012] Gates v AT & T Corp., 100 AD3d 1216, 956 NYS2d 589 [3d Dept 2012] Lucchesi v Perfetto 72 AD3d 909, supra; State v CSRI Ltd. Partnership, 289 AD2d 394, supra).

The doctrine may only be predicated on continuing wrongful acts and not on the continuing effects of earlier wrongful conduct (see Thomas v City of Oneonta, 90 AD3d 1135, 934 NYS2d 249 [3d Dept 2011] Rowe v NYCPD, 85 AD3d 1001, 926 NYS2d 121 [2d Dept 2011] Commack Self-Serv. Kosher Meats Inc. v State, 270 AD2d 687, 704 NYS2d 737 [3d Dept 2000] Selkirk v State, 249 AD2d 818, 671 NYS2d 824 [3d Dept 1998]). It is inapplicable where there is one tortious act complained of since the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff and it does not change as a result of continuing consequential damages (see Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024, supra; New York Seven—Up Bottling Co. v Dow Chem. Co., 96 AD2d 1051, 1052, 466 NYS2d 478 [2d Dept.1983], aff'd 61 NY2d 828, 473 NYS2d 973 [1984]). Thus, claims of continuing wrongs, including those involving continuing nuisance or trespass, which are premised upon a discrete act are not saved by continuing wrong [*8]doctrine (see Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024, supra; 509 Sixth Ave. Corp. v New York City Tr. Auth.,15 NY2d 48, supra; CSC Acquisition-NY, Inc. v 404 County Rd. 39A, Inc., 96 AD3d 986, 987, supra).

In contract actions, the continuous wrong or contract doctrine is applied to extend statutes of limitations in actions for breach of contract where the contract imposes a continuing duty on the breaching party (see Bulova Watch Co., Inc. v Celotex Corp., 46 NY2d 606, 415 NYS2d 817 [1979] Meadow Brook Farm Homeowners v JZG Resources, Inc., 105 AD3d 820, 963 NYS2d 300 [2d Dept 2013] New York Cent. Mut. Fire Ins. Co. v Glider Oil Co., Inc. 90 AD3d 1638, 936 NYS2d 815 [4th Dept 2011] King v 870 Riverside Dr. Hous. Dev. Fund Corp., 74 AD3d 494, 902 NYS2d 86 [1st Dept 2010] Westchester County Corr. Officers Benev. Ass'n, Inc. v County of Westchester, 65 AD3d 1226, 885 NYS2d 728 [2d Dept 2009] Stalis v Sugar Creek Stores, Inc. 295 AD2d 939, 744 NYS2d 586 [4th Dept 2002] Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68, 80—81, 430 NYS2d 179 [4th Dept 1980] see also Measom v Greenwich and Perry St. Hous. Corp., 8 Misc 3d 50, 798 NYS2d 298 [App. Term, 1st Dept 2005]). It is an exception to the general rule that the statute of limitations for a breach of contract action "runs from the time of the breach though no damage occurs until later" (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402, 599 NYS2d 501 [1993]).

As is the case in tort actions, the continuing wrong or breach doctrine may only be predicated on continuing wrongful acts and not on the continuing effects of earlier wrongful conduct (see Ely—Cruikshank Co. v Bank of Montreal, 81 NY2d 399, supra; Amirthmasebi v Benyamini, 306 AD2d 363, 760 NYS2d 887 [2d Dept 2003] Roslyn Sav. Bank v National Westminster Bank USA,266 AD2d 272, 699 NYS2d 421 [2d Dept 1999]). A claim that a breach of contract is a continuing wrong is unavailing to a plaintiff who does not allege an affirmative breach occurred within the applicable statutory limitations period (see De Hernandez v Bank of Nova Scotia, 76 AD3d 929, 908 NYS2d 45 [1st Dept 2010] King v 870 Riverside Dr. Hous. Dev. Fund Corp., 74 AD3d 494, supra).

Here, the claim for which application of the continuous wrong doctrine targets the banks and sounds in aiding and abetting their purported breaches of fiduciary duties by Delta Kew. However, the time barred nature of such claim under the three year statute applicable thereto is not extinguishable under the continuous wrong doctrine for several reasons. The wrongful acts with which the banks are charged consist of their consummation of a series of mortgage loans to Delta Kew which allegedly enabled and/or facilitated Delta Kew's breach of certain of its co-tenant fiduciary duties owing to the plaintiff, such as encumbering her interest with a mortgage without her consent. The first of the loans was made in 2001 and the last in 2006, which was recorded in January of 2007, and this action was commenced in 2012. Assuming, without so finding, that the loaning of mortgage monies by the banks to Delta Kew is actionable under theories of aiding and abetting fiduciary duties, and that the several separate loans constituted continuing wrongs to which the continuing wrong doctrine is applicable, this action was commenced well after the expiration of the three year statute of limitations applicable to the last loan made in December of 2006 (see CPLR 214[4]). Since the doctrine saves claims for recovery of damages only to the extent of wrongs [*9]committed within the applicable statute of limitations, the plaintiff's claims are time barred (see De Hernandez v Bank of Nova Scotia, 76 AD3d 929, supra; King v 870 Riverside Dr. Hous. Dev. Fund Corp., 74 AD3d 494, supra).

In addition, the plaintiff's attempt to invoke the continuous doctrine is itself flawed. It rests only upon allegations that the aiding and abetting conduct engaged by the banks put her interest in the subject premises under a continuing cloud and attendant adverse effects for which money damages are now recoverable. However, these allegations amount only to claims of continuing damages rather than to claims of continuing wrongs of the type that qualify for application of the continuous wrong doctrine. As such, they are insufficient to invoke the continuous wrong doctrine in the first instance (see Thomas v City of Oneonta, 90 AD3d 1135, supra; Rowe v NYCPD, 85 AD3d 1001, supra).

To the extent that the plaintiff's invocation of the continuous wrong doctrine rests upon an attempt to bootstrap application of the rule providing for the continuing nature of claims to remove clouds on title by owners or other persons in possession of real property to her proposed new tort claim of aiding and abetting claim , it is rejected as lacking in merit. The reason for the ten year statute of limitations in quiet title and other actions for a determination of adverse claims that runs from the time the claimant is out of possession was pronounced by the Court of Appeals in Ford v Clendenin (215 NY 15 [1915]), to be as follows:

It is well settled that an owner in possession has a right to invoke the aid of a court of equity at any time while he is so the owner and in possession, to have an apparent, though in fact not a real incumbrance discharged from the record and such a right is never barred by the Statute of Limitations. It is a continuing right which exists as long as there is an occasion for its exercise. (Miner v. Beekman, 50 NY 337; Schoener v. Lissauer, 107 NY 111; Smith v. Reid, 134 NY 568, 577, 578; De Forest v. Walters, 153 NY 229; Gilmore v. Ham, supra.)

The owner of real property who is in possession thereof may wait until his possession is invaded or his title is attacked before taking steps to vindicate his right. A person claiming title to real property but not in possession thereof must act affirmatively and within the time provided by the statute. Possession is a continuing right as is the right to defend such possession. So it has been determined that an owner of real property in possession has a continuing right to invoke a court of equity to remove a cloud that is a continuing menace to his title. Such a menace is compared to a continuing nuisance or trespass which is treated as successive nuisances or trespasses, not barred by statute until continued without interruption for a length of time sufficient to affect a change of title as a matter of law [emphasis added] (Miner v. Beekman, supra; Galway v. Metr. E. R. Co., 128 NY 132.)

As indicated above, the plaintiff does not propose to add a claim for declaratory relief determining adverse claims to the subject real property and/or the removal of any cloud upon her title arising from the mortgage liens of the banks or otherwise. Instead, the proposed amendment at issue is one to add a tort claim for the recovery of damages from the banks by reason of their purportedly [*10]tortious conduct in aiding and abetting Delta Kew's breaches of its co-tenant fiduciary duties to the plaintiff. As such, the elongated statute of limitations provided to claimants seeking to quiet their title by the removal of clouds or otherwise is not applicable to the plaintiff's proposed new tort claim sounding in the aiding and abetting breaches of fiduciary duties.

Finally, the court rejects the plaintiff's attempt to invoke the doctrine of estoppel so as to preclude the banks from asserting their statute of limitations defense. It is now well settled law that the doctrine of equitable estoppel applies "where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action" (Simcuski v Saeli, 44 NY2d 442, 449, 406 NYS2d 259 [1978]). Considered a remedy extraordinary in nature (see Pulver v Dougherty, 58 AD3d 978, 871 NYS2d 495 [3d Dept 2009]), it precludes a defendant from using the statute of limitations as a defense " where it is the defendant's affirmative wrongdoing ... which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding'" (Putter v North Shore Univ. Hosp., 7 NY3d 548, 825 NYS2d 435 [2006], quoting Zumpano v Quinn, 6 NY3d 666, 673, 816 NYS2d 703 [2006], quoting General Stencils v Chiappa, 18 NY2d 125, 128, 272 NYS2d 337 [1966]). To successfully invoke the doctrine, the plaintiff must demonstrate reasonable reliance on the defendant's misrepresentations by the establishment of subsequent and specific actions by defendants that somehow kept the plaintiff from timely bringing suit (see Zumpano v Quinn, 6 NY3d at 674, supra).

A review of the record here reveals that there are no allegations of any acts of fraud, deception or misrepresentations on the part of the banks that induced the plaintiff into delaying in the assertion of her proposed new aiding and abetting fiduciary duties claims. Instead, the plaintiff merely claims that the " affirmative wrongdoing' by Delta Kew and the Bank[s] in recording the multiple mortgages and liens that purport to cover the plaintiff's interest in the premises is sufficient to create the necessary triable issue of fact as to whether the Banks are equitably estoppel from invoking the statute of limitations" (see plaintiff's Reply Memorandum of Law, p. 3). The court finds that such a claim is insufficient to invoke the "extraordinary" remedy of equitable estoppel to preclude the banks from asserting their statute of limitations defense.

Accordingly, the court, upon the limited reargument granted, denies the plaintiff's application for leave to amend her complaint to assert her two prong aiding and abetting claim against the defendant banks.

DATED: April 22, 2014_____________________________

THOMAS F. WHELAN, J.S.C.