In Kaufman v. Cohen, 307 AD2d 113 [1st Dept 2003] the Court decided whether a three-year or a six-year statute of limitations applied to a claim by two partners against a third partner for breach of fiduciary duty arising from the misappropriation of a partnership interest (ibid., at 115). Around the time that a commercial property owned by the partnership was in foreclosure, one partner, Irwin Cohen, informed the other two partners that the property was not worth salvaging and that the partnership should allow the interest to lapse (ibid.). However, at that time, Cohen was allegedly secretly agreeing with new partners to re acquire the property out of foreclosure, at a discount (id. at 115-116). The partnership allowed the foreclosure to proceed and Cohen re-acquired the property (id. at 116). In determining the applicable statute of limitations, the Court noted that the complaint demanded both legal and equitable relief and therefore, it was not clear whether a three year or six-year statute of limitations should apply (id. at 118). However, given that the plaintiff alleged all the elements necessary to support a fraud claim (i.e., a representation of material fact, the falsity thereof, knowledge by the party making the representation that it was false when made, justifiable reliance by the plaintiff and injury) and, the allegations of fraud were not merely incidental to the breach of fiduciary claim, the Court applied a six year statute of limitations (id. at 119-120).