| Minskoff Grant Realty & Mgt. Corp. v 211 Mgr. Corp. |
| 2010 NY Slip Op 02108 [71 AD3d 843] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Minskoff Grant Realty & Management Corp. et al.,Appellants, v 211 Manager Corporation, Respondent. |
—[*1] Fulbright & Jaworski, LLP, New York, N.Y. (Robert D. Owen of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, aslimited by their brief, from so much of an order and judgment (one paper) of the Supreme Court,Westchester County (Scheinkman, J.), entered October 15, 2008, as granted that branch of thedefendant's motion which was to dismiss the amended complaint as time-barred pursuant toCPLR 3211 (a) (5), and dismissed the amended complaint.
Ordered that the order and judgment is reversed insofar as appealed from, on the law, withcosts, that branch of the defendant's motion which was to dismiss the amended complaint astime-barred pursuant to CPLR 3211 (a) (5) is denied, and the amended complaint is reinstated.
The amended complaint alleges, in pertinent part, that the defendant, 211 ManagerCorporation, promised to pay the plaintiff Francis C. Grant III, the Chief Executive Officer ofthe plaintiff Minskoff Grant Realty & Management Corp. (hereinafter together the plaintiffs), a1% "success fee" if he successfully arranged refinancing of the defendant's mortgage obligationson an office building it owns in Detroit, Michigan. The plaintiffs arranged such refinancing, witha $32,000,000 mortgage refinancing transaction, closing in August 1998. Over the years, thedefendant never remitted the success fee to Grant, despite Grant's requests. Moreover, financialstatements for the years 2002 and 2003 attributed to the defendant, which the plaintiffs submittedin opposition to the defendant's motion, inter alia, to dismiss the amended complaint astime-barred, referred to an invoice submitted with respect to the success fee which noted thatapproval for the amount sought, $320,000, required approval of the defendant's Board ofDirectors, and indicated that such approval had not yet been given. At a meeting of thedefendant's Board of Directors on June 18, 2003, the Board agreed to discuss the success fee atits next meeting. At that next meeting, held on March 23, 2004, a motion to approve payment bythe defendant to Grant of the success fee, totaling $320,000, was defeated. In March 2007, Grantmade a written demand to the defendant's Board, seeking payment of the success fee. Thedefendant did not remit such payment. The plaintiffs commenced this action, inter alia, torecover damages for breach of contract, seeking the sum of $320,000. The defendant, amongother things, moved to dismiss the amended complaint as time-barred pursuant to CPLR 3211 (a)(5), contending that the amended complaint was barred by the six-year statute of limitations setforth in CPLR 213 (2). In the order and judgment appealed from, the Supreme Court, inter alia,granted that branch of the defendant's motion and dismissed the amended complaint in itsentirety. We reverse the order and judgment insofar as appealed from.[*2]
"On a motion to dismiss pursuant to CPLR 3211, thecourt must take the allegations in the complaint as true and resolve all reasonable inferences infavor of the pleader" (6D Farm Corp. vCarr, 63 AD3d 903, 905 [2009]; see Leon v Martinez, 84 NY2d 83, 87-88[1994]). In moving for dismissal pursuant to CPLR 3211 (a) (5), a defendant must establish,prima facie, "that the time in which to commence an action has expired" (Texeria v BAB Nuclear Radiology,P.C., 43 AD3d 403, 405 [2007]; see 6D Farm Corp. v Carr, 63 AD3d at905-906; Savarese v Shatz, 273 AD2d 219 [2000]).
"The time within which an action must be commenced, except as otherwise expresslyprescribed, shall be computed from the time the cause of action accrued to the time the claim isinterposed" (CPLR 203 [a]). "Where, as here, the claim is for payment of a sum of moneyallegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses alegal right to demand payment" (Swift vNew York Med. Coll., 25 AD3d 686, 687 [2006] [internal quotation marks omitted]; see Kuo v Wall St. Mtge. Bankers,Ltd., 65 AD3d 1089 [2009]).
At this stage of the action, there is a question as to when Grant's legal right to demandpayment of the success fee arose, and therefore the defendant failed to establish, prima facie, thatthe amended complaint should be dismissed as time-barred pursuant to CPLR 3211 (a) (5)(see Kuo v Wall St. Mtge. Bankers, Ltd., 65 AD3d at 1090; Cognetta v Valencia Devs., Inc., 8AD3d 318, 320 [2004]; Seattle Pac.Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d 930, 932 [2008]; Fade v Pugliani/Fade, 8 AD3d612, 613 [2004]; Knoll v DatekSec. Corp., 2 AD3d 594 [2003]; Estate of Vengroski v Garden Inn, 114 AD2d927, 928 [1985]). Accordingly, that branch of the defendant's motion which was to dismiss theamended complaint as time-barred should have been denied. Covello, J.P., Miller, Dickerson andBelen, JJ., concur.