Verizon New York, Inc. v. Sprint PCS

43 A.D.3d 686, 841 N.Y.S.2d 529

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 13, 2007
• Status: Published

Opinions

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered on or about December 13, 2006, which granted defendants’ motion to dismiss the complaint, reversed, on the law, without costs, the motion denied and the complaint reinstated.

Inasmuch as there is no indication that plaintiff had reason to know, or should have known, that defendants would refuse to pay the contract price, its cause of action for breach of contract accrued, for purposes of the statute of limitations, on November 10, 2000, by which date plaintiff’s October 10, 2000 invoice demanded payment, and defendants failed to pay (see John J. Kassner & Co. v City of New York, 46 NY2d 544, 550 [1979]). Defendants’ position that the cause of action accrued on April 6, 1999, the date of the contract, is unavailing because plaintiff waived the contractual requirement that prepayment be made before work would begin. The alternative argument that the cause of action accrued, at the very latest, in April 2000, when plaintiff completed its work, is also unavailing because this claim is for payment on the contract (see Matter of Bombardier Transp. [Holdings] USA, Inc. v Telephonies Corp., 14 AD3d 358 [2005]), not for defective construction or consequential damages (cf. Amedeo Hotels Ltd. Partnership v Zwicker Elec. Co., 291 AD2d 322 [2002]). Concur—Tom, J.E, Andrias, Sweeny and Kavanagh, JJ.