Flowers v. 73rd Townhouse LLC

99 A.D.3d 431, 951 N.Y.2d 393

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 2012
• Status: Published

Opinion

The documentary evidence submitted on the motion — namely, checks from the Law Offices of Milton S. Rinzler to certain defendants — failed to show conclusively that plaintiff’s claims were time-barred. The affidavits submitted by defendants were not “documentary evidence” within the meaning of CPLR 3211 (a) (1) (see e.g. Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2d Dept 2010]; Fontanetta v John Doe 1, 73 AD3d 78, 85-86 [2d Dept 2010]), and without the affidavits, it cannot be concluded that defendant 73rd Townhouse LLC made distributions that were protected by the statute of limitations in Limited Liability Company Law § 508 (c).

On appeal, defendants argue only the statute of limitations. Accordingly, they have abandoned so much of their motion as was based on CPLR 3211 (a) (7). Concur — Gonzalez, P.J., Saxe, DeGrasse, Freedman and Román, JJ.