Town & Country Adult Living, Inc. v Village/Town of Mount Kisco - 2026 NY Slip Op 04447
Town & Country Adult Living, Inc. v Village/Town of Mount Kisco
2026 NY Slip Op 04447
July 15, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Town and Country Adult Living, Inc., et al., appellants,
v
Village/Town of Mount Kisco, et al., respondents.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 15, 2026
2020-05499, (Index No. 58963/19)
Betsy Barros, J.P.
Helen Voutsinas
Lourdes M. Ventura
Donna-Marie E. Golia, JJ.
Rosenbaum & Taylor, P.C., White Plains, NY (Dara L. Rosenbaum and Scott Taylor of counsel), for appellants.
Terry Rice, Suffern, NY, for respondents.
[*1]
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated May 4, 2020. The order, insofar as appealed from, granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first through sixth, eighth, and ninth causes of action.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiffs allegedly owned and operated a senior adult assisted living facility as a prior nonconforming use on certain property located in Westchester County. The plaintiffs made an application to the defendant Village/Town of Mount Kisco (hereinafter the Village) for a variance in order to expand the facility. In January 2002, after the application allegedly was denied by the Village Planning Board (hereinafter the Planning Board), the plaintiffs commenced an action pursuant to the federal Fair Housing Act against the Village and the Planning Board in the United States District Court for the Southern District of New York (hereinafter the District Court), inter alia, challenging that denial (hereinafter the 2002 federal action). The 2002 federal action was settled in 2006 by a fully executed stipulation of settlement (hereinafter the 2006 stipulation). In an order dated September 20, 2007, the District Court stated, with respect to the 2006 stipulation, that "[t]he Court shall also retain jurisdiction of this matter to determine any disputes or applications thereunder."
On January 22, 2007, the Village, as landlord, and the plaintiffs, as tenants, executed a lease agreement for certain property owned by the Village (hereinafter the subject property). Between January 2008 and August 2012, the plaintiffs and the Village executed five amendments to the lease agreement. On August 27, 2012, the plaintiffs assigned their rights and obligations under the lease agreement to The Hearth at Mount Kisco, LLC (hereinafter the assignee), by an assignment and assumption of lease (hereinafter the lease assignment). Between May 2013 and January 2015, the assignee and the Village executed five more amendments to the lease agreement. On August 31, 2015, the tenth, and final, amendment to the lease agreement expired and the lease agreement terminated. In or about October 2016, the plaintiffs allegedly introduced HFZ Capital Group (hereinafter HFZ) to the Village and asked that HFZ be granted an option to purchase the subject [*2]property. On June 5, 2017, after the Village Board of Trustees allegedly failed to approve the option for HFZ to purchase the subject property, the plaintiffs served the Village, among others, with a notice of claim pursuant to General Municipal Law § 50-e, alleging, among other things, tortious interference with contract and tortious interference with business relations.
On June 11, 2019, the plaintiffs commenced this action against the Village and several Village officials and employees. The plaintiffs asserted, inter alia, causes of action alleging breach of the 2006 stipulation (first cause of action), breach of the lease agreement (third cause of action), breach of the fifth amendment to the lease agreement (fourth cause of action), breach of the tenth amendment to the lease agreement (fifth cause of action), breach of the implied covenant of good faith and fair dealing in connection with the lease agreement, the amendments to the lease agreements, and the 2006 stipulation (sixth cause of action), tortious interference with contract (eighth cause of action), and tortious interference with business relations (ninth cause of action), and a cause of action for specific performance of the lease agreement, the amendments to the lease agreement, and the 2006 stipulation (second cause of action).
The defendants thereafter moved pursuant to CPLR 3211(a)(1), (3), (5), and (7) to dismiss the complaint. In an order dated May 4, 2020, the Supreme Court, among other things, granted those branches of defendants' motion which were to dismiss the first through sixth, eighth, and ninth causes of action. The plaintiffs appeal.
"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing" (Whitson's Food Serv., LLC v A.R.E.B.A.-Casriel, Inc., 230 AD3d 1274, 1275 [internal quotation marks omitted]; see CPLR 3211[a][3]; Matter of Crown Castle NG E., LLC v City of Rye, 207 AD3d 624, 627). "To defeat a defendant's motion to dismiss, the plaintiff has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as to the issue" (Green v Forster & Garbus, LLP, 237 AD3d 1059, 1061 [internal quotation marks omitted]; see Whitson's Food Serv., LLC v A.R.E.B.A.-Casriel, Inc., 230 AD3d at 1275).
Here, the defendants met their burden of establishing, prima facie, the plaintiffs' lack of standing to assert so much of the second cause of action as sought specific performance of the lease agreement and the amendments to the lease agreement, and the third, fourth, and fifth causes of action, which alleged breach of contract. The defendants established that by virtue of the lease assignment, the plaintiffs were no longer parties to the lease agreement or the first five amendments to the lease agreement and were never parties to the sixth through tenth amendments to the lease agreement (see Whitson's Food Serv., LLC v A.R.E.B.A.-Casriel, Inc., 230 AD3d at 1275; Matter of Crown Castle NG E., LLC v City of Rye, 207 AD3d at 627). In opposition, the plaintiffs failed to raise a question of fact (see Green v Forster & Garbus, LLP, 237 AD3d at 1061; Sikh Forum, Inc. v Saluja, 227 AD3d 1024, 1025). In any event, these causes of action were time-barred (see Reid v Incorporated Vil. of Floral Park, 107 AD3d 777, 778). Accordingly, the Supreme Court properly granted those branches of the defendants' motion which were to dismiss so much of the second cause of action as sought specific performance of the lease agreement and the amendments to the lease agreement, and the third, fourth, and fifth causes of action (see Green v Forster & Garbus, LLP, 237 AD3d at 1061; Sikh Forum, Inc. v Saluja, 227 AD3d at 1025).
The Supreme Court also properly granted that branch of the defendants' motion which was to dismiss the sixth cause of action as time-barred. "On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" (Bank of N.Y. Mellon v Jones, 239 AD3d 805, 806; see U.S. Bank N.A. v Derissaint, 193 AD3d 790, 791). "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" (Bank of N.Y. Mellon v Jones, 239 AD3d at 806; see U.S. Bank N.A. v Derissaint, 193 AD3d at 791).
Pursuant to CPLR 9802, "no action shall be maintained against the village upon or [*3]arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued" (see Matter of South Nyack Police Assn. v Village of S. Nyack, 229 AD3d 634, 635; Reid v Incorporated Vil. of Floral Park, 107 AD3d at 778). A cause of action alleging breach of contract or breach of the implied covenant of good faith and fair dealing accrues and the statute of limitations begins to run from the time of the breach (see Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402; New York Bus Operators Compensation Trust v American Home Assur. Co., 241 AD3d 563, 566). Accrual occurs "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court" (Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765, 770 [internal quotation marks omitted]; see HP Capital, LLC v Village of Sleepy Hollow, 68 AD3d 928, 929).
Here, as the defendants correctly contend, the sixth cause of action, alleging breach of the implied covenant of good faith and fair dealing, accrued, at the latest, when the lease agreement expired on August 31, 2015 (see Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d at 770; HP Capital, LLC v Village of Sleepy Hollow, 68 AD3d at 929). Since this action was not commenced until June 11, 2019, the defendants established, prima facie, that the sixth cause of action was time-barred (see Reid v Incorporated Vil. of Floral Park, 107 AD3d at 778). In opposition, the plaintiffs failed to raise a question of fact as to whether the statute of limitations had been tolled or was otherwise inapplicable, or whether they actually commenced the action within the applicable limitations period (see id.). Contrary to the plaintiffs' contention, the statute of limitations was not tolled for the period between the defendants' demand for a hearing pursuant to General Municipal Law § 50-h(5) and the hearing, nor was it tolled by the service of the notice of claim upon the defendants pursuant to CPLR 204(a) (see General Municipal Law § 50-i[3]; Fireman's Fund Ins. Co. v Village of Lake Success, 33 AD3d 958, 959; Mignott v New York City Health & Hosps. Corp., 250 AD2d 165, 168).
Contrary to the plaintiffs' further contention, the continuing wrong doctrine does not apply. The continuing wrong doctrine "is usually employed where there is a series of continuing wrongs and serves to toll the running of a period of limitations to the date of the commission of the last wrongful act" (Affordable Hous. Assoc., Inc. v Town of Brookhaven, 150 AD3d 800, 802 [internal quotation marks omitted]; see York v York, 235 AD3d 1032, 1034). The doctrine "'may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct'" (Affordable Hous. Assoc., Inc. v Town of Brookhaven, 150 AD3d at 803, quoting Selkirk v State of New York, 249 AD2d 818, 819; see Blaize v New York City Dept. of Educ., 205 AD3d 871, 875). Here, the plaintiffs' allegations amount to a single wrong that had continuing effects (see York v York, 235 AD3d at 1034; Henry v Bank of Am., 147 AD3d 599, 602).
"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (B & B Maintenance Servs., Inc. v Town of Oyster Bay, 228 AD3d 808, 808 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "[T]o be considered documentary, evidence must be unambiguous and of undisputed authenticity" (B & B Maintenance Servs., Inc. v Town of Oyster Bay, 228 AD3d at 808 [internal quotation marks omitted]; see Fontanetta v John Doe 1, 73 AD3d 78, 86).
"On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), 'the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory'" (B & B Maintenance Servs., Inc. v Town of Oyster Bay, 228 AD3d at 808, quoting Cantor v Villucci, 212 AD3d 765, 766; see Leon v Martinez, 84 NY2d 83, 88). "'Upon the submission of evidentiary material in support of such a motion, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, [*4]dismissal should not eventuate'" (B & B Maintenance Servs., Inc. v Town of Oyster Bay, 228 AD3d at 808-809, quoting Klostermeier v City of Port Jervis, 200 AD3d 866, 867-868).
"'Tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom'" (Gutierrez v McGrath Mgt. Servs., Inc., 152 AD3d 498, 500, quoting Lama Holding Co. v Smith Barney, 88 NY2d 413, 424; see Delanerolle v St Catherine of Sienna Med. Ctr., 231 AD3d 1013, 1015). Here, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the eighth cause of action, alleging tortious interference with contract, pursuant to CPLR 3211(a)(1) and (7). The evidentiary material submitted by the defendants demonstrated that there was no third-party agreement.
Additionally, the Supreme Court properly granted that branch of the defendants' motion which was dismiss the ninth cause of action, alleging tortious interference with business relations, pursuant to CPLR 3211(a)(1) and (7). "'To prevail on a claim for tortious interference with business relations, a plaintiff must prove: (1) that it had a business relationship with a third party; (2) that the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant's interference caused injury to the relationship with the third party'" (Delanerolle v St Catherine of Sienna Med. Ctr., 231 AD3d at 1015, quoting 106 N. Broadway, LLC v Lawrence, 189 AD3d 733, 741; see 684 E. 222nd Realty Co., LLC v Sheehan, 185 AD3d 879, 879-880). Here, the evidentiary material submitted by the defendants in support of their motion demonstrated that the defendants' actions were not motived solely by malice or otherwise constituted illegal means (see Blum v New York Stock Exch., 253 AD2d 835, 836).
However, the Supreme Court improperly, sua sponte, concluded that the first cause of action, alleging breach of the 2006 stipulation, and so much of the second cause of action as sought specific performance of the 2006 stipulation were subject to dismissal for lack of subject matter jurisdiction. While "a court may raise the issue of subject matter jurisdiction . . . at any time, including sua sponte" (Matter of Scully v O'Connor, 225 AD3d 769, 770 [internal quotation marks omitted]), "[a] court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" (Binder v Tolou Realty Assoc., Inc., 205 AD3d 870, 871 [internal quotation marks omitted]).
Here, the Supreme Court erred in, sua sponte, determining that the District Court retained exclusive jurisdiction over the first cause of action and so much of the second cause of action as sought specific performance of the 2006 stipulation. Although the District Court expressly retained jurisdiction to determine any disputes involving the 2006 stipulation, the District Court did not retain exclusive jurisdiction (see Matter of Ferri [Roberts], 114 AD2d 743, 744; Matter of Gorbaty [Roberts], 103 AD2d 931, 932). However, for the same reasons stated above, the first cause of action and so much of the second cause of action as sought specific performance of the 2006 stipulation were subject to dismissal as time-barred (see Reid v Incorporated Vil. of Floral Park, 107 AD3d at 778).
The parties' remaining contentions are without merit.
BARROS, J.P., VOUTSINAS, VENTURA and GOLIA, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court