Harber Philadelphia Center City Office Ltd. v. Eichler

Appellate Division of the Supreme Court of New York

Harber Philadelphia Center City Office Ltd. v. Eichler

261 A.D.2d 181, 690 N.Y.S.2d 27, 1999 N.Y. App. Div. LEXIS 5288

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

DecidedMay 11, 1999

StatusPublished

This text of 261 A.D.2d 181 (Harber Philadelphia Center City Office Ltd. v. Eichler) 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

Harber Philadelphia Center City Office Ltd. v. Eichler, 261 A.D.2d 181, 690 N.Y.S.2d 27, 1999 N.Y. App. Div. LEXIS 5288 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered September 21, 1998, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The IAS Court properly dismissed plaintiffs’ remaining causes of action for breach of fiduciary duty and breach of contract on the ground that they are barred by the relevant Statutes of Limitation. The parties agree that Pennsylvania law is applicable to their dispute and that the governing limi[182]*182tations periods thereunder are two and four years, respectively (see, 42 Pa Cons Stat Annot § 5524 [7]; § 5525 [8]). The IAS Court correctly found that plaintiffs’ claims accrued no later than 1991. Since, under Pennsylvania law, the limitations period begins to run as soon as the underlying cause of action accrues (see, Bohus v Beloff, 950 F2d 919, 924; Pocono Intl. Raceway v Pocono Produce, 503 Pa 80, 84, 468 A2d 468, 471), and plaintiffs’ action was not commenced until October 1995, the subject claims are time-barred. Although Pennsylvania law provides for the tolling of the statutory period upon a showing by the plaintiff of fraud or active concealment by the defendant (see, First Options v Wallenstein, 1997 US Dist LEXIS 2051, 1997 WL 89115 [ED Pa, Feb. 28, 1997, Hutton, JJ; Bohus v Beloff, 950 F2d, supra, at 925), plaintiffs’ conclusory allegations are insufficient as a predicate for tolling based on active concealment.

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Sullivan, J. P., Williams, Wallach, Rubin and Mazzarelli, JJ.

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—Order, Supreme Court, New York County (Ira Gammerman, J.), entered September 21, 1998, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The IAS Court properly dismissed plaintiffs’ remaining causes of action for breach of fiduciary duty and breach of contract on the ground that they are barred by the relevant Statutes of Limitation. The parties agree that Pennsylvania law is applicable to their dispute and that the governing limi[182]*182tations periods thereunder are two and four years, respectively (see, 42 Pa Cons Stat Annot § 5524 [7]; § 5525 [8]). The IAS Court correctly found that plaintiffs’ claims accrued no later than 1991. Since, under Pennsylvania law, the limitations period begins to run as soon as the underlying cause of action accrues (see, Bohus v Beloff, 950 F2d 919, 924; Pocono Intl. Raceway v Pocono Produce, 503 Pa 80, 84, 468 A2d 468, 471), and plaintiffs’ action was not commenced until October 1995, the subject claims are time-barred. Although Pennsylvania law provides for the tolling of the statutory period upon a showing by the plaintiff of fraud or active concealment by the defendant (see, First Options v Wallenstein, 1997 US Dist LEXIS 2051, 1997 WL 89115 [ED Pa, Feb. 28, 1997, Hutton, JJ; Bohus v Beloff, 950 F2d, supra, at 925), plaintiffs’ conclusory allegations are insufficient as a predicate for tolling based on active concealment.

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Sullivan, J. P., Williams, Wallach, Rubin and Mazzarelli, JJ.

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Bluebook (online)

261 A.D.2d 181, 690 N.Y.S.2d 27, 1999 N.Y. App. Div. LEXIS 5288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harber-philadelphia-center-city-office-ltd-v-eichler-nyappdiv-1999.

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