166 Archer Avenue Co. v. New York City Health & Hospitals Corp.

Appellate Division of the Supreme Court of New York

166 Archer Avenue Co. v. New York City Health & Hospitals Corp.

59 A.D.3d 357, 874 N.Y.S.2d 432

Appellate Division of the Supreme Court of the State of New York·Decided February 26, 2009·Published

Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered March 19, 2008, which granted defendant’s motion for partial summary judgment dismissing the cause of action for breach of contract as untimely, unanimously affirmed, without costs.

Since plaintiffs claim for construction costs accrued no later than 1994, this action commenced in 2007 was untimely (CPLR 213 [2]). Plaintiffs contention—that lease provisions conditioning plaintiffs right to payment upon substantial completion and acceptance of the work and providing that defendant “may audit” plaintiffs records to determine the reasonable amount of costs should be construed as requiring completion of an audit as a condition precedent to payment—is unsupported (see Grace Indus., Inc. v New York City Dept. of Transp., 22 AD3d 262, 263 [2005], lv denied 6 NY3d 703 [2006]; see generally Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 691 [1995]) and cannot serve to toll the statute of limitations here. Nor is such condition imposed by the September 1997 letter from defendant’s counsel, in light of both its language and the lease’s merger clause. In view of the foregoing, plaintiff’s claimed need for discovery provided no basis to forestall summary judgment.

We have considered plaintiffs remaining contention regarding the constructive rejection of its claim and find it unavailing. Concur—Saxe, J.P, Catterson, McGuire, Moskowitz and Acosta, JJ.

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Order, Supreme Court, New York County (Herman Cahn, J.), entered March 19, 2008, which granted defendant’s motion for partial summary judgment dismissing the cause of action for breach of contract as untimely, unanimously affirmed, without costs.

Since plaintiffs claim for construction costs accrued no later than 1994, this action commenced in 2007 was untimely (CPLR 213 [2]). Plaintiffs contention—that lease provisions conditioning plaintiffs right to payment upon substantial completion and acceptance of the work and providing that defendant “may audit” plaintiffs records to determine the reasonable amount of costs should be construed as requiring completion of an audit as a condition precedent to payment—is unsupported (see Grace Indus., Inc. v New York City Dept. of Transp., 22 AD3d 262, 263 [2005], lv denied 6 NY3d 703 [2006]; see generally Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 691 [1995]) and cannot serve to toll the statute of limitations here. Nor is such condition imposed by the September 1997 letter from defendant’s counsel, in light of both its language and the lease’s merger clause. In view of the foregoing, plaintiff’s claimed need for discovery provided no basis to forestall summary judgment.

We have considered plaintiffs remaining contention regarding the constructive rejection of its claim and find it unavailing. Concur—Saxe, J.P, Catterson, McGuire, Moskowitz and Acosta, JJ.

166 Archer Avenue Co. v. New York City Health & Hospitals Corp., 59 A.D.3d 357, 874 N.Y.S.2d 432 (N.Y. Ct. App. 2009).

Pincite

59 A.D.3d 357 (166 Archer Avenue Co. v. New York City Health & Hospitals Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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