Ely-Cruikshank Co. v. Bank of Montreal

185 A.D.2d 182, 585 N.Y.S.2d 765, 1992 N.Y. App. Div. LEXIS 8973

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1992
• Status: Published

Opinions

Order, Supreme Court, New York County (Myriam J. Altman, J.), entered November 26, 1990, which granted the defendants’ motion to dismiss the complaint, modified, on the law, to reinstate the first cause of action, and otherwise affirmed, with costs.

The plaintiff alleged that it was entitled to a brokerage commission on a sale of a building owned by the defendant Bank of Montreal ("Bank”). The sale was completed shortly more than two months after the Bank terminated its exclusive brokerage agreement with the plaintiff, which agreement included an exclusive right to sell. The plaintiff further alleged that the sale resulted from negotiations initiated by the Bank with the buyer during the life of that agreement. The contract also granted the plaintiff the exclusive right to negotiate a sale. The dissent maintains that this breach of contract cause of action is time-barred, since the applicable six year statute of limitations began to run either at the time the Bank began negotiating with the buyer, or at the time the Bank terminated its agreement with the plaintiff. The plaintiff, of course, maintains that the sale negotiations were wilfully concealed from it.

However, a statute of limitations begins to run upon the accrual of a cause of action and a cause of action does not accrue until its enforcement becomes possible (Jacobus v Colgate, 217 NY 235; Roldan v Allstate Ins. Co., 149 AD2d 20). In this case, that did not occur until the sale of the premises, when the duty to pay the plaintiff’s commission arose (see, Schochet v Public Natl. Bank, 220 App Div 201). The mere allegations of a breach of contract are insufficient to sustain a complaint in the absence of allegations of fact showing damage (Reade v Sullivan, 259 App Div 229; Brooklyn Union Gas Co. v Interboro Surface Co., 87 AD2d 833; Ryan Ready Mixed Concrete Corp. v Coons, 25 AD2d 530). Further, this is not a case, as maintained by the dissent, in which the plaintiff could have brought an action upon termination for commissions expected to accrue under that agreement in the future (Afshar v Procon Inc., 442 F Supp 887, 889 [SD NY], affd 580 F2d 1044; O’Connell v Rao, 70 AD2d 982, 983, lv denied 48 NY2d 609). This is so since the contract gave the plaintiff the exclusive right to negotiate and the exclusive right to sell, and since it is maintained by the plaintiff that the defendant conducted the negotiations in secret and reached its contract to sell in secret.

The plaintiff could not sustain a cause of action until the defendant Bank refused to pay it the commission which was due only upon the sale. Accordingly, the plaintiff’s action seeking to recover its commission on the sale of the property is not barred by the statute of limitations. Concur—Murphy, P. J., Rosenberger and Rubin, JJ.