Rivera v. Viera

256 A.D.2d 100, 681 N.Y.S.2d 274, 1998 N.Y. App. Div. LEXIS 13268

Opinion

—Order, Supreme Court, New York County (Bertram Katz, J.), entered March 24, 1997, which denied defendant Ramos’ motion pursuant to CPLR 3025 (b) to amend his answer to assert further counterclaims subsequent to dismissal of his original counterclaim, unanimously affirmed, with costs.

We previously deemed defendant Ramos’ counterclaim to sound in conversion and on that basis affirmed its dismissal as time-barred (246 AD2d 432). Defendant-appellant’s present attempt to avoid the statutory bar by refashioning the facts underlying the prior, dismissed counterclaim for conversion, into counterclaims for breach of contract, was properly rejected by the motion court as patently without merit (see, East Asiatic Co. v Corash, 34 AD2d 432). Nor do we perceive any reason to reconsider our prior, express holding that the counterclaim is for conversion. Concur — Lerner, P. J., Ellerin, Andrias and Saxe, JJ.