Erdheim v. Matkins

Appellate Division of the Supreme Court of New York

Erdheim v. Matkins

259 A.D.2d 515, 686 N.Y.S.2d 108, 1999 N.Y. App. Div. LEXIS 2221

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

DecidedMarch 8, 1999

StatusPublished

Cited by5 cases

This text of 259 A.D.2d 515 (Erdheim v. Matkins) 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

Erdheim v. Matkins, 259 A.D.2d 515, 686 N.Y.S.2d 108, 1999 N.Y. App. Div. LEXIS 2221 (N.Y. Ct. App. 1999).

Pincite

Opinion

In an action, inter alia, to recover on a loan, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), dated May 1, 1998, as granted those branches of the defendant’s motion which were to dismiss the second and third causes of action as barred by the Statute of Limitations.

[516]*516Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly dismissed the plaintiffs third cause of action to recover damages for conversion as barred by the three-year Statute of Limitations as set forth in CPLR 214 (3) (see, Gold Sun Shipping v Ionian Transp., 245 AD2d 420).

We agree with the Supreme Court that the plaintiffs second cause of action should also be dismissed, but for a different reason. In that cause of action, the plaintiff sought damages under a theory of unjust enrichment based upon the same allegations as those underlying the first cause of action. In both the first and second causes of action, the plaintiff alleged a default on a promissory note, which would constitute a breach of contract. Since the complaint fails to allege tort liability or a breach of duty distinct from, or in addition to, the breach of contract claim, the second cause of action should have been dismissed for this reason (see, Layden v Boccio, 253 AD2d 540; see generally, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382). Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.

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In an action, inter alia, to recover on a loan, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), dated May 1, 1998, as granted those branches of the defendant’s motion which were to dismiss the second and third causes of action as barred by the Statute of Limitations.

[516]*516Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly dismissed the plaintiffs third cause of action to recover damages for conversion as barred by the three-year Statute of Limitations as set forth in CPLR 214 (3) (see, Gold Sun Shipping v Ionian Transp., 245 AD2d 420).

We agree with the Supreme Court that the plaintiffs second cause of action should also be dismissed, but for a different reason. In that cause of action, the plaintiff sought damages under a theory of unjust enrichment based upon the same allegations as those underlying the first cause of action. In both the first and second causes of action, the plaintiff alleged a default on a promissory note, which would constitute a breach of contract. Since the complaint fails to allege tort liability or a breach of duty distinct from, or in addition to, the breach of contract claim, the second cause of action should have been dismissed for this reason (see, Layden v Boccio, 253 AD2d 540; see generally, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382). Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.

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Bluebook (online)

259 A.D.2d 515, 686 N.Y.S.2d 108, 1999 N.Y. App. Div. LEXIS 2221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erdheim-v-matkins-nyappdiv-1999.

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