| 3636 Greystone Owners, Inc. v Greystone Bldg. Co. |
| 2008 NY Slip Op 04212 [51 AD3d 461] |
| May 6, 2008 |
| Appellate Division, First Department |
| 3636 Greystone Owners, Inc., Appellant, v GreystoneBuilding Co., Respondent. |
—[*1] Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal P.C., Yonkers (Lawrence T.Schiro of counsel), for respondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about September 18,2007, which, to the extent appealed from as limited by the brief, dismissed as time-barred theaction for a judgment declaring that plaintiff was the owner of certain garage spaces and formoney damages, unanimously affirmed, with costs.
Contrary to its contention, plaintiff was not the beneficial owner of the garage spaces at thetime that defendant leased the spaces to it, and the lease was not void ab initio. Thus, the courtdid not err in applying the statute of limitations to this action (see Riverside Syndicate, Inc. v Munroe, 10 NY3d 18, 24 [2008]).Title to the building containing the spaces was in defendant's name when the lease was executed.It had not been transferred to plaintiff. Nor had the cooperative offering plan been amended toinclude the garage spaces.
Pursuant to the offering plan, plaintiff had a claim to the garage spaces as a result ofdefendant's failure to obtain a ruling from the Division of Housing and Community Renewal thatthe spaces were not subject to rent stabilization. However, plaintiff did not timely pursue saidclaim. Plaintiff's failure to recognize that defendant had not applied for the ruling was a unilateralmistake born of its own lack of diligence in enforcing its rights under the offering plan (see Angel v Bank of Tokyo-Mitsubishi,Ltd., 39 AD3d 368, 369 [2007]).
The doctrine of equitable estoppel, which plaintiff invokes to bar defendant from pleadingthe statute of limitations as an affirmative defense, is inapplicable here since the allegedmisrepresentation or act of concealment forms the basis of both plaintiff's estoppel argument andits underlying substantive cause of action (see Kaufman v Cohen, 307 AD2d 113, 122[2003]). Further, since plaintiff had sufficient facts within the six-year limitation period to put it"on inquiry" as to the existence of its claim to the garage spaces, its negligence in failing to makethe inquiry is "fatal to [its] plea of ignorance" (Kingsland v Fuller, 157 NY 507, 511[1899]). Concur—Tom, J.P., Andrias, Nardelli and Williams, JJ.