| Meadowbrook Farms Homeowners Assn., Inc. v JZG Resources,Inc. |
| 2013 NY Slip Op 02381 [105 AD3d 820] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Meadowbrook Farms Homeowners Association, Inc.,Respondent, v JZG Resources, Inc., Appellant. |
—[*1] Vergilis, Stenger, Roberts, Davis & Diamond, LLP, Wappingers Falls, N.Y.(Kenneth M. Stenger of counsel), for respondent.
In an action to recover damages for breach of contract and for a judgment declaring,inter alia, that the defendant is contractually obligated to pay the plaintiff assessments asthe owner of 24 lots in a residential subdivision in Patterson, New York, the defendantappeals, as limited by its brief, from so much of an order of the Supreme Court, PutnamCounty (Nicolai, J.), dated August 16, 2011, as granted those branches of the plaintiff'smotion which were for leave to reargue its opposition to the defendant's prior motion forsummary judgment dismissing the complaint, which had been granted in a prior order ofthe same court dated February 24, 2011, and for leave to reargue its prior cross motion todismiss certain affirmative defenses, which had been denied in the order dated February24, 2011, and, upon reargument, vacated the determinations in the order dated February24, 2011, granting that branch of the defendant's prior motion which was for summaryjudgment dismissing the complaint on the ground that it is preempted by the Martin Actand denying those branches of the plaintiff's prior cross motion which were to dismissthe affirmative defenses based on Martin Act preemption and lack of standing, andthereupon denied that branch of the defendant's prior motion which was for summaryjudgment dismissing the complaint on the ground that it is preempted by the Martin Actand, in effect, denied those branches of the defendant's prior motion which were forsummary judgment dismissing the complaint as time-barred and barred by the plaintiff'sbylaws and dismissing the third and fourth causes of action for lack of standing, andgranted those branches of the plaintiff's prior cross motion which were to dismiss theaffirmative defenses based on Martin Act preemption and lack of standing, and deniedthat branch of its cross motion which was to vacate a recorded lien and lis pendens.
Ordered that the order dated August 16, 2011, is affirmed insofar as appealed from,with costs, and, upon searching the record, summary judgment is awarded to the plaintiffdismissing the affirmative defense based on the statute of limitations.
The Supreme Court providently exercised its discretion in granting that branch of theplaintiff's motion which was for leave to reargue (see CPLR 2221 [d]; Weiss v Fire Extinguisher Servs.Co., Inc., 83 AD3d 822, 823 [2011]).
Upon reargument, the Supreme Court properly denied that branch of the defendant's[*2]prior motion which was for summary judgmentdismissing the complaint on the ground that it is preempted by the Martin Act(see General Business Law art 23-A). Since the plaintiff's common-law causes ofaction to recover damages for breach of contract and derivative declaratory judgmentcauses of action are not "predicated solely on a violation of the Martin Act or itsimplementing regulations," they are not preempted by the Martin Act (Assured Guar. [UK] Ltd. v J.P.Morgan Inv. Mgt. Inc., 18 NY3d 341, 353 [2011]; see Kerusa Co. LLC v W10Z/515Real Estate Ltd. Partnership, 12 NY3d 236, 245-247 [2009]; Caboara v Babylon Cove Dev.,LLC, 82 AD3d 1141, 1142-1143 [2011]; Board of Mgrs. of Marke Gardens Condominium v 240/242Franklin Ave., LLC, 71 AD3d 935, 936 [2010]; cf. Hamlet on Olde Oyster BayHome Owners Assn., Inc. v Holiday Org., Inc., 65 AD3d 1284, 1287 [2009]).Accordingly, upon reargument, the Supreme Court also properly granted that branch ofthe plaintiff's prior cross motion which was to dismiss the affirmative defense based onMartin Act preemption.
In addition, upon reargument, the Supreme Court properly, in effect, denied thatbranch of the defendant's prior motion which was for summary judgment dismissing thecomplaint on the ground that it was barred by the plaintiff's bylaws. The defendant failedto submit evidence establishing, prima facie, that the plaintiff violated any provision ofits bylaws.
Moreover, upon reargument, the Supreme Court properly, in effect, denied thatbranch of the defendant's prior motion which was for summary judgment dismissing thecomplaint as time-barred. A cause of action to recover damages for breach of contractaccrues, and the relevant six-year statute of limitations begins to run, at the time of thealleged breach (see CPLR 213 [2]; Senter v Gitlitz, 97 AD3d 808, 808 [2012]). "[W]here aduty imposed prior to a limitations period is a continuing one, the statute of limitations isnot a defense to actions based on breaches of that duty occurring within the limitationsperiod" (Westchester CountyCorrection Officers Benevolent Assn., Inc. v County of Westchester, 65 AD3d1226, 1228 [2009] [internal quotation marks omitted]; see Beller v William Penn Life Ins.Co. of N.Y., 8 AD3d 310, 314 [2004]). Here, the alleged breach is of thedefendant's obligation to pay annual assessments to the plaintiff. Thus, a new breachoccurred for statute of limitations purposes each year the defendant failed to make anallegedly required payment to the plaintiff (see Westchester County CorrectionOfficers Benevolent Assn., Inc. v County of Westchester, 65 AD3d at 1228; CSEA Empl. Benefit Fund vWarwick Val. Cent. School Dist., 36 AD3d 582, 584 [2007]). Since the plaintiffonly seeks damages for alleged breaches that occurred within the six years prior to thecommencement of this action, the causes of action to recover damages for breach ofcontract are not time-barred. The same six-year statute of limitations governs theplaintiff's declaratory judgment causes of action (see Vigilant Ins. Co. of Am. vHousing Auth. of City of El Paso, Tex., 87 NY2d 36, 40-41 [1995]) and, therefore,they also are not time-barred. Accordingly, since, inter alia, there is no triable issue offact as to when the plaintiff's causes of action accrued, upon searching the record, weaward summary judgment to the plaintiff dismissing the affirmative defense based on thestatute of limitations (see CPLR 3212 [b]; Dunham v Hilco Constr. Co.,89 NY2d 425 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d106 [1984]).
The defendant's remaining contentions are either without merit or improperly raisedfor the first time on appeal. Balkin, J.P., Lott, Austin and Sgroi, JJ., concur.