| Akhunov v 771620 Equities Corp. |
| 2010 NY Slip Op 08518 [78 AD3d 870] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Simkho Akhunov, Appellant, v 771620 Equities Corp.,Respondent. |
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In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiffappeals from an order of the Supreme Court, Queens County (Golia, J.), dated August 28, 2009,which granted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, the owner of shares in a cooperative apartment building, commenced an actionagainst the defendant cooperative seeking various forms of relief based on an allegation that only368 shares, rather than 468 shares, should have been allocated to his unit in the building.
The Supreme Court properly determined that the causes of action to recover damages forfraud and breach of contract were time-barred since they were commenced more than six yearsafter the plaintiff learned that 468 shares had been allocated to his unit, at which point thesecauses of action accrued (see CPLR 213 [2], [8]).
Additionally, the plaintiff asserted a cause of action for a judgment declaring that he ownsonly 368 shares of the cooperative apartment building. " '[I]f [an] action for a declaratoryjudgment could have been brought in a different form asserting a particular cause of action, thelimitations period applicable to the particular cause of action will apply' " (Tornheim v Tornheim, 67 AD3d775, 777 [2009], quoting Waldmanv 853 St. Nicholas Realty Corp., 64 AD3d 585, 587 [2009]; see New York CityHealth & Hosps. Corp. v McBarnette, 84 NY2d 194, 201 [1994]). Here, the cause of actionfor declaratory relief could have been brought as a cause of action for reformation of a contract,which carries a six-year statute of limitations (see CPLR 213 [6]). Since the cause ofaction for declaratory relief was commenced more than six years after the date upon which acause of action for reformation of the parties' contract would have accrued (see Taintor v Taintor, 50 AD3d887, 888 [2008]), the declaratory judgment cause of action is time-barred (see Tornheimv Tornheim, 67 AD3d at 777).[*2]
That branch of the defendant's motion which was forsummary judgment dismissing the cause of action alleging unjust enrichment also was properlygranted, but for a reason different from that relied upon by the Supreme Court. The defendantdemonstrated its prima facie entitlement to judgment as a matter of law on this cause of action byestablishing that it was not enriched at the plaintiff's expense (see Baratta v Kozlowski,94 AD2d 454 [1983]; see also Paramount Film Distrib. Corp. v State of New York, 30NY2d 415, 421 [1972], cert denied 414 US 829 [1973]). In opposition, the plaintiff failedto raise a triable issue of fact.
In light of our determination, we need not reach the parties' remaining contentions. Skelos,J.P., Fisher, Santucci and Leventhal, JJ., concur.