Boone Associates, L.P. v. Leibovitz

13 A.D.3d 267, 786 N.Y.S.2d 518, 2004 N.Y. App. Div. LEXIS 15431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 23, 2004, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff seeks to enforce an oral contract entered into in August 1990 pursuant to which defendant agreed to take a series of photo portraits. All of the contractually contemplated portraits but the last were shot and delivered within a month of the contract. In October 2003, 13 years later, plaintiff commenced this action to compel defendant to take and deliver the final portrait due under the agreement or, alternatively, to recover damages for defendant’s breach of that obligation. It is undisputed that the agreement was silent as to the time within which it was to be performed. In such a case, performance is due within a “reasonable time” under the particular circumstances (see Escobar v Gonzalez, 277 AD2d 93 [2000]). Here, the motion court correctly found that defendant’s performance of the contract should reasonably have been completed within a few months, or no later than the end of 1990. Thus, the court properly concluded that the action was untimely, having been commenced more than six years after the alleged breach and subsequent to the expiration of the applicable limitation period (CPLR 213). Nor did certain writings of defendant or her representatives serve to renew the limitation period pursuant to General Obligations Law § 17-101, since they were, at most, offers of courtesy or accommodation and not express acknowledgments of a still enforceable contractual obligation (see Nagle v Herold, 30 F Supp 905 [WD NY 1939]). Concur—Nardelli, J.P., Andrias, Ellerin, Marlow and Sweeny, JJ.