| HP Capital, LLC v Village of Sleepy Hollow |
| 2009 NY Slip Op 09429 [68 AD3d 928] |
| December 15, 2009 |
| Appellate Division, Second Department |
| HP Capital, LLC, Respondent, v Village of SleepyHollow, Appellant, et al., Defendants. |
—[*1]
In an action, inter alia, to recover damages for breach of contract, the defendant Village ofSleepy Hollow appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.),entered November 7, 2008, which denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it as time-barred and for failure to timely file a notice ofclaim pursuant to CPLR 9802.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantVillage of Sleepy Hollow for summary judgment dismissing the complaint insofar as assertedagainst it is granted.
The plaintiff HP Capital, LLC, commenced this action against, among others, the defendantVillage of Sleepy Hollow, alleging that on March 22, 2005 the Village sold defective tax salecertificates to it. On or about November 12, 2007 the plaintiff filed a notice of claim with theVillage Clerk. On or about January 14, 2008 the plaintiff commenced this action. The Villagemoved for summary judgment dismissing the complaint insofar as asserted against it astime-barred and for failure to timely file a notice of claim pursuant to CPLR 9802. The SupremeCourt denied the motion. We reverse.
Pursuant to CPLR 9802, "no action shall be maintained against the village upon orarising out of a contract of the village unless the same shall be commenced withineighteen months after the cause of action therefor shall have accrued, nor unless awritten verified claim shall have been filed with the village clerk within one year afterthe cause of action shall have accrued" (emphasis added). Here, the plaintiff's claim, in essence,was predicated on breach of contract (see generally Clark-Fitzpatrick, Inc. v Long Is. R.R.Co., 70 NY2d 382, 389 [1987]; Heffez v L & G Gen. Constr., Inc., 56 AD3d 526[2008]).
The plaintiff purchased the allegedly defective certificates on March 22, 2005. The notice ofclaim, however, was not filed until sometime on or about November 12, 2007, more than twoyears later. "A cause of action for breach of contract accrues and the statute of limitations beginsto run from the time of breach" (Fourth Ocean Putnam Corp. v Interstate Wrecking Co.,108 AD2d 3, 7 [1985], affd 66 NY2d 38 [1985] [internal quotation marks omitted];see Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993]). As a generalrule, accrual occurs when all of the factual elements necessary to maintain the lawsuit and obtainrelief come into existence (see Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d [*2]at 406, citing 1 Weinstein-Korn-Miller, NY Civ Prac ¶201.02, at 2-10). Thus, here, the cause of action accrued at the time of the alleged breach, i.e.,when the certificates were sold. Accordingly, filing of the notice of claim was required to havebeen made within one year after the cause of action accrued on March 22, 2005 (seeCPLR 9802). Moreover, the statute of limitations expired within 18 months after the cause ofaction accrued (id.).
Accordingly, the Supreme Court should have granted the Village's motion for summaryjudgment dismissing the complaint insofar as asserted against it as time-barred and for failure totimely file a notice of claim pursuant to CPLR 9802. Skelos, J.P., Eng, Austin and Roman, JJ.,concur.