| EMD Constr. Corp. v New York City Dept. of Hous. Preserv. &Dev. |
| 2010 NY Slip Op 01454 [70 AD3d 893] |
| February 16, 2010 |
| Appellate Division, Second Department |
| EMD Construction Corp., Appellant, v New York CityDepartment of Housing Preservation and Development et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andNorman Corenthal of counsel), for respondents.
In an action to recover damages for breach of contract and unjust enrichment, the plaintiffappeals from an order of the Supreme Court, Queens County (Flug, J.), entered March 23, 2009,which granted those branches of the defendants' motion which were pursuant to CPLR 3211 (a)(5) and (7) to dismiss the complaint as time-barred and on the ground that it failed to complywith Administrative Code of the City of New York § 7-201 (a).
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the defendants' motion to dismiss the complaint. Thecomplaint fails to allege that "at least thirty days ha[d] elapsed since the . . . claim. . . upon which [the] action . . . is founded [had been] presented to thecomptroller for adjustment, and that the comptroller ha[d] neglected or refused to make anadjustment or payment thereof for thirty days after such presentment" (Administrative Code ofCity of NY § 7-201 [a]; see Republic of Argentina v City of New York, 25 NY2d252, 265 [1969]; Raven El. Corp. v City of New York, 291 AD2d 355 [2002]; City ofNew York v 611 W. 152nd St., 273 AD2d 125 [2000]; City of New York vCandelario, 223 AD2d 617 [1996]; Chinatown Apts. v New York City Tr. Auth.,100 AD2d 824 [1984]; Arol Dev. Corp. v City of New York, 59 AD2d 883 [1977])."Although technical defenses in abatement are not favored where prejudice has not resulted,courts may not relieve a litigant of a positive statutory mandate, even to avoid a harsh result"(P. J. Panzeca, Inc. v Board of Educ., Union Free School Dist. No. 6, Towns of Islip &Smithtown, 29 NY2d 508, 510 [1971]).
Additionally, the causes of action set forth in the complaint were not interposed within sixyears after their accrual in accordance with the six-year statute of limitations set forth in CPLR213 (2) (see D & L Assoc., Inc. v New York City School Constr. Auth., 69 AD3d 435[2010]). Moreover, the unjust enrichment cause of action, which is indistinguishable from thebreach of contract cause of action (see Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d755 [2009]), is governed by the same statute of limitations as that applicable to the breach ofcontract cause of action (see 37 Park Dr. S., Inc. v Duffy, 63 AD3d 1040 [2009][applying six-year [*2]limitations period to unjust enrichmentcause of action]). The plaintiff's remaining contentions, including those based on the doctrine ofequitable estoppel and on the applicability of a 20-year statute of limitations (seeAdministrative Code of City of NY § 7-207), are all without merit. Dillon, J.P.,Miller, Eng and Roman, JJ., concur.