| Thompson v Horwitz |
| 2012 NY Slip Op 07983 [100 AD3d 864] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Marjorie Thompson, Respondent, v Martin Horwitz,Defendant, MFA Construction, Inc., Appellant. |
—[*1] Larry Anthony Welch, New York, N.Y. (Choya Washington of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendant MFAConstruction, Inc., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Pfau, J.), entered January 9, 2012, as denied that branch of the motion ofthe defendants MFA Construction, Inc., and Martin Horwitz which was for summary judgmentdismissing the complaint insofar as asserted against it as time-barred, and granted that branch ofthe plaintiff's cross motion which was for summary judgment on the issue of liability insofar asasserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiff's cross motion which was for summary judgment on the issue of liabilityinsofar as asserted against the defendant MFA Construction, Inc., and substituting therefor aprovision denying that branch of the cross motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The plaintiff commenced this action against the defendant MFA Construction, Inc.(hereinafter MFA), and its president, the defendant Martin Horwitz, alleging that the defendantsbreached an oral agreement pursuant to which the plaintiff was authorized to perform certainmarketing services on behalf of the defendants. The plaintiff alleged, inter alia, that thedefendants failed to pay her an agreed-upon fee for her services. The Supreme Court denied thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against MFA as time-barred, and granted that branch of the plaintiff's crossmotion which was for summary judgment on the issue of liability insofar as asserted againstMFA.
The Supreme Court properly denied that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted against MFA as time-barred."Where, as here, the claim is for payment of a sum of money allegedly owed pursuant to acontract, the cause of action accrues when the plaintiff 'possesses a legal right to demandpayment' " (Swift v New York Med.Coll., 25 AD3d 686, 687 [2006], quoting Matter of Prote Contr. Co. v Board ofEduc. of City of N. Y., 198 AD2d 418, 420 [1993]; see Minskoff Grant Realty & Mgt. Corp. v 211 Mgr. Corp., 71 AD3d843, 845 [2010]). Contrary to MFA's contention, the defendants failed to show when theplaintiff's legal right to demand payment arose. Therefore, the defendants failed to establish theirprima facie entitlement to judgment as a matter of law dismissing the complaint insofar asasserted against MFA as time-barred (see Minskoff Grant Realty & Mgt. Corp. v 211 Mgr.Corp., 71 AD3d at 845; Kuo v WallSt. Mtge. Bankers, Ltd., 65 AD3d 1089, 1090 [2009]). The defendants' failure toestablish their prima facie entitlement to judgment as a matter of law on this issue required thedenial of that branch of the motion, regardless of the sufficiency of the plaintiff's oppositionpapers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The Supreme Court erred, however, in granting that branch of the plaintiff's cross motionwhich was for summary judgment on the issue of liability insofar as asserted against MFA. Inopposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law,the defendants raised a triable issue of fact as to the terms of the parties' oral agreement, and as towhat fee, if any, the plaintiff is entitled to under the agreement (see John Treiber Agency vSpartan Concrete Corp., 268 AD2d 506 [2000]). Angiolillo, J.P., Balkin, Lott and Roman,JJ., concur.