| Splinters, Inc. v Greenfield |
| 2009 NY Slip Op 04411 [63 AD3d 717] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Splinters, Inc., Doing Business as Splinters General Contractor,Respondent, v Alan B. Greenfield et al., Appellants. (Action No. 1.) Splinters, Inc.,Doing Business as Splinters General Contractor, Respondent, v Alan B. Greenfield et al.,Appellants. (Action No. 2.) |
—[*1] Brian P. Neary, P.C., Huntington, N.Y., for respondent.
In two related actions to recover damages for breach of contract, the defendants appeal froman order of the Supreme Court, Suffolk County (Kerins, J.), dated December 11, 2008, which,inter alia, denied that branch of their motion which was to dismiss the action bearing SuffolkCounty index No. 05-29899, and denied that branch of their motion which was to dismiss thecomplaint in the action bearing Suffolk County index No. 06-27594 and for leave to enter adefault judgment on their counterclaim in that action.
Ordered that the order is modified, on the law, the facts, and in the exercise of discretion, (1)by deleting the provision thereof denying that branch of the defendants' motion which was todismiss the action bearing Suffolk County index No. 05-29899 and substituting therefor aprovision granting that branch of the motion, and (2) by deleting the provision thereof denyingthat branch of the defendants' motion which was to dismiss the complaint in the action bearingSuffolk County index No. [*2]06-27594 and substituting therefora provision granting that branch of the motion; as so modified, the order is affirmed, with coststo the defendants.
By summons with notice dated December 19, 2005, the plaintiff commenced an actionbearing Suffolk County index No. 05-29899 seeking to recover damages in the sum of $46,000for breach of an unspecified contract. On or about February 7, 2006 the defendants served ademand for a complaint pursuant to CPLR 3012. On October 25, 2006, without havingresponded to the demand for a complaint in the 2005 action, the plaintiff, appearing by a secondattorney, commenced a second action, bearing Suffolk County index No. 06-27594 seeking torecover damages in the sum of $30,591 for the breach of a home improvement contract. Thedefendants thereafter answered the complaint in the 2006 action, asserting a counterclaim fordamages for breach of the same contract in the sum of $43,320. On or about June 13, 2007 theplaintiff served a document that was purportedly a reply to the counterclaim in the 2006 action,but which bore the 2005 index number.
By notice of motion dated January 18, 2008, the defendants moved for joinder of the actionsfor pretrial and trial purposes, dismissal of the complaint in the 2006 action as time-barred,dismissal of the 2005 action for failure to serve a complaint, and leave to enter a defaultjudgment in the 2006 action granting the relief requested in the counterclaim based upon theplaintiff's failure to reply. In opposition to the motion, the plaintiff, appearing by a third attorney,asserted, on the basis of an affirmation from its second attorney, that the second attorney hadprepared a complaint in the 2005 action, but his paralegal, who was unfamiliar with theprocedure to be followed when an action has been commenced by summons with notice, hadimproperly commenced the 2006 action instead. The plaintiff cross-moved for leave to serve acomplaint in the 2005 action, leave to serve a reply to the counterclaim in the 2006 action, andfor consolidation of the two actions. The Supreme Court, reasoning that public policy favorsresolution of disputes on the merits (seeSchonfeld v Blue & White Food Prods. Corp., 29 AD3d 673 [2006]), inter alia, deniedthose branches of the defendants' motion which were to dismiss the actions, granted theplaintiff's cross motion for leave to serve a complaint in the 2005 action, and directed that theactions be tried jointly.
The Supreme Court erred in denying that branch of the defendants' motion which was todismiss the complaint in the 2006 action. An action to recover for breach of a constructioncontract accrues on the last date work was performed (see Phillips Constr. Co. v City of NewYork, 61 NY2d 949, 951 [1984]; Stewart v Stuart, 262 AD2d 396 [1999]; Matterof Donaldson Acoustics v New York Inst. of Tech., 249 AD2d 391 [1998]; see alsoPetracca v Petracca, 305 AD2d 566, 567 [2003]). It is undisputed that the work under thealleged contract was completed on February 5, 2000 and that the second action was notcommenced until November 6, 2006. Applying the six-year statute of limitations for breach ofcontract causes of action established by CPLR 213 (2), the 2006 action is untimely. Since thecounterclaim is deemed interposed at the same time as the complaint (see Kuslansky v Kuslansky, Robbins,Stechel & Cunningham, LLP, 50 AD3d 1101 [2008]), it is also barred by the statute oflimitations. Therefore, the Supreme Court properly denied that branch of the defendants' motionwhich was for leave to enter a default judgment on the counterclaim in that action.
The Supreme Court improvidently exercised its discretion in denying the branch of thedefendants' motion which was to dismiss the 2005 action. In order "[t]o avoid dismissal forfailure to timely serve a complaint after a demand for the complaint has been made pursuant toCPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in servingthe complaint and a meritorious cause [*3]of action" (Balgleyv Cammarata, 299 AD2d 432 [2002] [internal quotation marks omitted]; see Pristavec v Galligan, 32 AD3d834 [2006]; Maldonado v SuffolkCounty, 23 AD3d 353 [2005]; Giordano v Vanchieri & Perrier, 16 AD3d 621 [2005]; Tutora v Schirripa, 1 AD3d 349[2003]). The plaintiff offered no excuse for the failure to serve a complaint during theapproximately seven-month period from the demand in February 2006 to October 2006 when itpurportedly intended to serve a complaint but failed to do so allegedly as a result of law-officefailure. Further, until an attorney of record withdraws or is changed or discharged in the mannerprescribed by CPLR 321, his or her authority as attorney of record for his or her client continues,as to adverse parties, unabated (see Moustakas v Bouloukos, 112 AD2d 981, 983[1985]). Thus, even if service of the complaint in October 2006 would have been timely, theservice would have been ineffective, since the plaintiff's second attorney had not yet beensubstituted as counsel and therefore had no authority to act for the plaintiff in that action(see CPLR 321 [b]). The 2005 action should therefore have been dismissed for failure torespond properly and timely to the defendants' demand for a complaint.
In light of the foregoing, the defendants' remaining contentions have been renderedacademic. Spolzino, J.P., Santucci, Angiolillo, Leventhal and Lott, JJ., concur.