| Johnson v Broder |
| 2013 NY Slip Op 08411 [112 AD3d 788] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Steve Johnson, Appellant, v Paul G. Broder,Respondent, et al., Defendant. |
—[*1] Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, N.Y.(Kathryn Dalli and Barbara Hall of counsel), for respondent.
In an action to reform a deed, the plaintiff appeals from so much of an order of theSupreme Court, Suffolk County (Farneti, J.), dated July 12, 2012, as granted that branchof the motion of the defendant Paul G. Broder which was for summary judgmentdismissing, as time-barred, so much of the complaint insofar as asserted against him aswas predicated upon an alleged mutual mistake.
Ordered that the order is affirmed insofar as appealed from, with costs.
"A cause of action seeking reformation of an instrument on the ground of mistake isgoverned by the six-year statute of limitations pursuant to CPLR 213 (6), which begins torun on the date the mistake was made" (Taintor v Taintor, 50 AD3d 887, 888 [2008]). In this case,the defendant Paul G. Broder established his prima facie entitlement to judgment as amatter of law dismissing, as time-barred, so much of the complaint insofar as assertedagainst him as was predicated upon an alleged mutual mistake by submitting evidencethat the alleged mistake occurred in 1979 and the plaintiff did not commence this actionuntil 2011 (see id. at 889). In opposition, the plaintiff failed to raise a triableissue of fact (cf. Hart v Blabey, 287 NY 257, 262-263 [1942]).
The plaintiff, in his notice of appeal, limited the scope of his appeal to so much ofthe order as granted that branch of Broder's motion which was for summary judgmentdismissing, as time-barred, so much of the complaint insofar as asserted against him aswas predicated upon an alleged mutual mistake. Thus, the plaintiff's contention on appealthat the Supreme Court improperly denied his cross motion is not properly before thisCourt (see CPLR 5515 [1]; Hatem v Hatem, 83 AD3d 663 [2011]). Rivera, J.P., Hall,Roman and Miller, JJ., concur. [Prior Case History: 2012 NY Slip Op31926(U).]