National Amusements, Inc. v. South Bronx Development Corp.

253 A.D.2d 358, 676 N.Y.S.2d 166, 1998 N.Y. App. Div. LEXIS 8815

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 6, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered July 18, 1997, which, in a declaratory judgment action by plaintiff tenant against defendant landlord involving the method by which plaintiffs share of defendant’s common área charges and taxes are to be calculated under the parties’ lease, insofar as appealed from, dismissed defendant’s second affirmative defense and second counterclaim for reformation as time-barred, unanimously affirmed, without costs.

The IAS Court correctly held that the underlying claim of mistake is untimely, having accrued when the subject lease was executed (see, Matter of Wallace v 600 Partners Co., 86 NY2d 543; Arrathoon v East N. Y. Sav. Bank, 169 AD2d 804, lv denied 77 NY2d 808), and, notwithstanding our comment in Davis v Davis (95 AD2d 674, 675), was not subject to a discovery accrual (see, First Natl. Bank v Volpe, 217 AD2d 967, 968). Defendant’s other arguments with regard to timeliness are without merit. In view of the foregoing, it is unnecessary to reach the parties’ other contentions. Concur — Milonas, J. P., Wallach, Rubin, Mazzarelli and Saxe, JJ.