CB RICHARD ELLIS-BUFFALO, LLC v. KUNVARJI HOTELS, INC.

Appellate Division of the Supreme Court of New York

CB RICHARD ELLIS-BUFFALO, LLC v. KUNVARJI HOTELS, INC.

94 A.D.3d 1458, 942 N.Y.S.2d 825

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 20, 2012

DocketCA 11-02222

StatusPublished

Cited by3 cases

This text of 94 A.D.3d 1458 (CB RICHARD ELLIS-BUFFALO, LLC v. KUNVARJI HOTELS, INC.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

CB RICHARD ELLIS-BUFFALO, LLC v. KUNVARJI HOTELS, INC., 94 A.D.3d 1458, 942 N.Y.S.2d 825 (N.Y. Ct. App. 2012).

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Opinion

Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered July 21, 2011 in a breach of contract action. The order, inter alia, granted defendants’ motion to dismiss plaintiffs complaint.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff, a real estate broker, commenced this action seeking to recover the commission allegedly due for services it provided to defendants in connection with the lease of commercial real property by defendant Kunvarji Hotels, Inc. (KHI). Supreme Court properly granted defendants’ motion to dismiss the complaint and denied plaintiffs cross motion seeking partial summary judgment on liability with respect to the breach of contract and quantum meruit causes of action. Pursuant to CPLR 213, a six-year limitations period applies to the causes of action premised upon breach of contract (see ElyCruikshank Co. v Bank of Montreal, 81 NY2d 399, 402-403 [1993] ), quantum meruit (see Erdheim v Gelfman, 303 AD2d 714, 714 [2003], lv denied 100 NY2d 514 [2003]), and unjust, enrichment (see Sirico v F.G.G. Prods., Inc., 71 AD3d 429, 434 [2010]). Each of those causes of action accrued when plaintiff earned its commission, i.e., the date on which KHI and the tenant executed the lease agreement (see Feinberg Bros. Agency v Berted Realty Co., 70 NY2d 828, 830 [1987]; Gronich & Co. v 649 Broadway Equities Co., 169 AD2d 600, 602 [1991]). The lease agreement was executed in January 2005 and the instant action was commenced more than six years later, on February 23, 2011. Thus, the causes of action at issue are time-barred.

The court properly denied plaintiffs cross motion on the further ground that issue had not been joined (see CPLR 3212 [a]; Matter of Estate of Jason v Herdman, 70 AD3d 1382 [2010]). Finally, we note that plaintiff has not raised any contention in its brief concerning the dismissal of the two remaining causes of action, and thus it has abandoned any issues with respect thereto (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994] ). Present — Centra, J.P., Peradotto, Sconiers and Martoche, JJ.

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Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered July 21, 2011 in a breach of contract action. The order, inter alia, granted defendants’ motion to dismiss plaintiffs complaint.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff, a real estate broker, commenced this action seeking to recover the commission allegedly due for services it provided to defendants in connection with the lease of commercial real property by defendant Kunvarji Hotels, Inc. (KHI). Supreme Court properly granted defendants’ motion to dismiss the complaint and denied plaintiffs cross motion seeking partial summary judgment on liability with respect to the breach of contract and quantum meruit causes of action. Pursuant to CPLR 213, a six-year limitations period applies to the causes of action premised upon breach of contract (see ElyCruikshank Co. v Bank of Montreal, 81 NY2d 399, 402-403 [1993] ), quantum meruit (see Erdheim v Gelfman, 303 AD2d 714, 714 [2003], lv denied 100 NY2d 514 [2003]), and unjust, enrichment (see Sirico v F.G.G. Prods., Inc., 71 AD3d 429, 434 [2010]). Each of those causes of action accrued when plaintiff earned its commission, i.e., the date on which KHI and the tenant executed the lease agreement (see Feinberg Bros. Agency v Berted Realty Co., 70 NY2d 828, 830 [1987]; Gronich & Co. v 649 Broadway Equities Co., 169 AD2d 600, 602 [1991]). The lease agreement was executed in January 2005 and the instant action was commenced more than six years later, on February 23, 2011. Thus, the causes of action at issue are time-barred.

The court properly denied plaintiffs cross motion on the further ground that issue had not been joined (see CPLR 3212 [a]; Matter of Estate of Jason v Herdman, 70 AD3d 1382 [2010]). Finally, we note that plaintiff has not raised any contention in its brief concerning the dismissal of the two remaining causes of action, and thus it has abandoned any issues with respect thereto (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994] ). Present — Centra, J.P., Peradotto, Sconiers and Martoche, JJ.

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94 A.D.3d 1458, 942 N.Y.S.2d 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cb-richard-ellis-buffalo-llc-v-kunvarji-hotels-inc-nyappdiv-2012.

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