| Reid v Incorporated Vil. of Floral Park |
| 2013 NY Slip Op 04321 [107 AD3d 777] |
| June 12, 2013 |
| Appellate Division, Second Department |
| Michael Reid, Respondent, v Incorporated Villageof Floral Park, Appellant. |
—[*1] Mead, Hecht, Conklin & Gallagher, LLP, White Plains, N.Y. (Kevin T. Conklin andSara Luca Salvi of counsel), for respondent.
In an action to recover damages for breach of contract, the defendant appeals from anorder of the Supreme Court, Nassau County (McCormack, J.), entered March 20, 2012,which denied its motion to dismiss so much of the complaint as sought to recoverdamages accruing prior to March 28, 2010, and thereupon to remove the action to theDistrict Court, Nassau County, pursuant to CPLR 325.
Ordered that the order is reversed, on the law, with costs, and the motion is granted.
From 1993 until 2010, the plaintiff was the Police Commissioner of the defendant,the Incorporated Village of Floral Park. In 1999, the plaintiff signed a contract with theVillage that provided that he was to earn $5,000 more than the highest-ranking lieutenantfor each year that he served as commissioner. In June 2010, after the plaintiff learned thathe would not be reappointed as commissioner, he allegedly discovered, throughconversations with his lieutenants, that they were earning more than he was. OnNovember 2, 2010, the plaintiff filed a written claim with the Village, alleging that itbreached its contract with him from 1999 through 2010. On September 28, 2011, theplaintiff commenced this action, alleging breach of contract, and seeking to recover thewages that allegedly were owed him for those years.
Pursuant to CPLR 9802, "no action shall be maintained against the village upon orarising out of a contract of the village unless the same shall be commenced withineighteen months after the cause of action therefor shall have accrued, nor unless a writtenverified claim shall have been filed with the village clerk within one year after the causeof action shall have accrued." Where the claim is for the payment of a sum of moneyallegedly owed pursuant to a contract, the cause of action accrues when the plaintiffpossesses a legal right to demand payment (see Kuo v Wall St. Mtge. Bankers, Ltd., 65 AD3d 1089,1090 [2009]; Swift v New YorkMed. Coll., 25 AD3d 686, 687 [2006]). Here, as the Village correctly contends,the causes of action alleging breach of contract accrued at the end of each year that theplaintiff allegedly was not paid in accordance with his contract (see Mucerino vFiretector, Inc., 306 AD2d 330, 331 [2003]; Matter of South Colonie Cent.School Dist. [South Colonie Teachers' Local 3014], 86 AD2d 686 [1982]). Sincethis action was not commenced until September 28, [*2]2011, the Village established, prima facie, that the actionwas time-barred to the extent that the plaintiff sought to recover damages accruing priorto March 28, 2010, that is, 18 months prior to the commencement of the action (see Zaborowski v Local 74, Serv.Empls. Intl. Union, AFL-CIO, 91 AD3d 768 [2012]). In opposition, the plaintifffailed to raise a question of fact as to whether the statute of limitations had been tolled orwas otherwise inapplicable, or whether he actually commenced the action within theapplicable limitations periods (see id. at 769; Williams v New York City Health & Hosps. Corp., 84 AD3d1358 [2011]). Contrary to the plaintiff's contention, his lack of knowledge that theseveral breaches had occurred did not toll the running of the limitations period (seeEly-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 403 [1993]; Sanchez de Hernandez v Bank ofNova Scotia, 76 AD3d 929, 930 [2010]). Further, the Supreme Courtimproperly relied on the discovery exception to the statute of limitations, applicable tocauses of action alleging fraud (see CPLR 213 [8]; Percoco v Lesnak, 24 AD3d427, 428 [2005]), since the plaintiff never alleged any fraud. The plaintiff'scontention that the Village should be equitably estopped from relying on the statute oflimitations is improperly raised for the first time on appeal (see Mitchell v NassauCommunity Coll., 265 AD2d 456 [1999]). In view of the foregoing, we need notreach the defendant's contention regarding the written verified claim requirement.
In light of our determination, the damages sought in connection with the portion ofthe complaint that is not time-barred fall within the jurisdictional limit of the DistrictCourt. Therefore, removal to that court is appropriate (see CPLR 325 [d]; UDCA202; Suk Hay Mui v Miller, 226 AD2d 182 [1996]). Dillon, J.P., Angiolillo,Dickerson and Chambers, JJ., concur. [Prior Case History: 2012 NY Slip Op30739(U).]