| Chi Kee Pang v Synlyco, Ltd. |
| 2011 NY Slip Op 08553 [89 AD3d 976] |
| November 22, 2011 |
| Appellate Division, Second Department |
| Chi Kee Pang, Also Known as Ronald Chikee Pang,Appellant, v Synlyco, Ltd., et al., Respondents. |
—[*1] Law Offices of David J. Sutton, P.C., Garden City, N.Y. (Anthony N. Elia of counsel), forrespondents.
In an action to recover damages for breach of contract, unjust enrichment, and fraud, the plaintiffappeals from (1) an order of the Supreme Court, Queens County (Kitzes, J.), entered June 30, 2010,which granted the defendants' renewed motion for summary judgment dismissing the complaint astime-barred, and (2) a judgment of the same court entered September 27, 2010, which, upon theorder, is in favor of the defendants and against him dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248[1976]). The issues raised on the appeal from the order are brought up for review on the appeal fromthe judgment (see CPLR 5501 [a] [1]).
The Supreme Court correctly determined that the instant action was time-barred under theapplicable statutes of limitations. The cause of action to recover damages for breach of contract isbarred by the six-year statute of limitations (see CPLR 213 [2]). The plaintiff's contention thatthe statute of limitations was tolled by the defendants' acknowledgment of the parties' alleged oralagreement is without merit, since the plaintiff failed to submit a writing to that effect, and GeneralObligations Law § 17-101 provides, in relevant part, that, with certain exceptions not applicablehere, "[a]n acknowledgment or promise contained in a writing signed by the party to be chargedthereby is the only competent evidence of a new or continuing contract whereby to take anaction out of the operation of the provision of limitations of time for commencing actions under the civilpractice law and rules" (cf. Jeffrey L.Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 815 [2008] [emphasis supplied]). Thecause of action to recover damages for unjust enrichment, which is [*2]indistinguishable from the breach of contract cause of action, is,consequently, also barred by the six-year statute of limitations set forth in CPLR 213 (2) (see EMD Constr. Corp. v New York City Dept.of Hous. Preserv. & Dev., 70 AD3d 893, 894 [2010]; 37 Park Dr. S., Inc. v Duffy, 63 AD3d 1040, 1041 [2009]). The causeof action to recover damages for fraud is time-barred inasmuch as the action was not commencedwithin six years of the date on which the cause of action accrued or within two years after the time theplaintiff could with reasonable diligence have discovered the fraud (see CPLR 213 [8]; Prand Corp. v County of Suffolk, 62 AD3d681, 683 [2009]; Pericon v Ruck,56 AD3d 635, 636 [2008]). Contrary to the plaintiff's contention, the doctrine of equitableestoppel is unavailable to toll the statute of limitations since, in response to the defendants' prima facieshowing, the plaintiff failed to raise a triable issue of fact as to whether any action or representation bythe defendants induced him to forgo the timely commencement of an action to enforce his rights underthe alleged oral agreement (see Javaheri vOld Cedar Dev. Corp., 84 AD3d 881, 886 [2011]; Jones v Safi, 58 AD3d 603, 604 [2009]).
In view of our determination, we need not address the plaintiff's remaining contentions. Dillon, J.P.,Dickerson, Chambers and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op31723(U).]