| Sears, Roebuck & Co. v Patchogue Assoc., LLC |
| 2011 NY Slip Op 06258 [87 AD3d 629] |
| August 16, 2011 |
| Appellate Division, Second Department |
| Sears, Roebuck and Co., Appellant, v PatchogueAssociates, LLC, Respondent. |
—[*1] Rosenberg Calica & Birney, LLP, Garden City, N.Y. (Robert M. Calica, Edward M. Ross,and Judah Serfaty of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Suffolk County (Gazzillo, J.), dated June 16, 2010, which grantedthe defendant's motion for summary judgment dismissing the complaint and denied its motion tocompel the defendant to provide proper and substantive responses to its first set ofinterrogatories.
Ordered that the order is affirmed, with costs.
A breach of contract cause of action accrues, and the relevant six-year statute of limitationsbegins to run, at the time of the breach (see CPLR 213 [2]), which, as a general rule,"occurs when all of the factual elements necessary to maintain the lawsuit and obtain relief comeinto existence" (HP Capital, LLC vVillage of Sleepy Hollow, 68 AD3d 928, 929 [2009]; see Ely-Cruikshank Co. vBank of Montreal, 81 NY2d 399, 402 [1993]). Here, the defendant established its prima facieentitlement to judgment as a matter of law dismissing the complaint as time-barred by submittingevidence establishing that the breach of contract causes of action accrued when the parties signedthe subject lease in 1998. Prior to the time the parties entered into the lease agreement, theplaintiff obtained a title report which reflected that the use of the leasehold was limited bycovenants and restrictions of record. Even though the plaintiff was aware that the lease provisionthat the subject property could be used for any lawful purpose was limited, it nevertheless enteredinto the lease.
The plaintiff did not commence the instant action until 2008, well over six years after thecauses of action accrued. In opposition, the plaintiff failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Courtproperly granted the defendant's motion for summary judgment dismissing the complaint astime-barred.
The plaintiff's remaining contentions have been rendered academic in light of ourdetermination. Skelos, J.P., Leventhal, Austin and Sgroi, JJ., concur.