Wint v. Fields

177 A.D.2d 425

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered June 25, 1990, which, to the extent appealed from, denied defendants’ motion to dismiss the complaint, is unanimously modified, on the law, to dismiss the fourteenth cause of action, with leave to replead again, and otherwise, affirmed, without costs.

The complaint alleges that several contracts were entered into between plaintiff Nel Rock Construction Corp. and defendant Fields, pursuant to which Nel Rock was to perform restoration services in exchange for reimbursement of its costs and expenses incurred for labor, services and materials plus 50% of the net profit upon resale of the properties restored and that Nel Rock performed such renovation services on three different properties. Defendants’ motion to dismiss the first cause of action based upon the Statute of Limitations was properly denied for lack of proof as to when defendant Fields refused plaintiffs’ demand for payment, thereby occasioning the accrual of the cause of action. There is a similar failure of proof for Statute of Limitations purposes with respect to plaintiffs’ fourth cause of action in quantum meruit, there being no evidence in the record respecting when Nel Rock’s performance was completed and accepted as there is with respect to the eighth, ninth and thirteenth causes of action. However, defendant is given leave to move again upon re-pleading and completion of discovery. The fourteenth cause of action appears to be a catch-all claim and should be dismissed with leave to replead. The complaint is otherwise specific enough to allow defendants to answer. Any additional information may be elicited through a bill of particulars, or, if need be, disclosure. We have considered defendants’ other contentions and find them to be without merit. Concur—Sullivan, J. P., Carro, Rosenberger and Rubin, JJ.