| Riverbay Corp. v Thyssenkrupp N. El. Corp. |
| 2014 NY Slip Op 02500 [116 AD3d 487] |
| April 10, 2014 |
| Appellate Division, First Department |
| Riverbay Corporation,Respondent, v Thyssenkrupp Northern Elevator Corporation et al., Appellants,et al., Defendant. |
—[*1] Smith, Buss & Jacobs, LLP, Yonkers (Jennifer L. Stewart of counsel), forrespondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered August 13, 2013,which, to the extent appealed from, denied defendants-appellants' motion to dismiss thecomplaint against them, unanimously modified, on the law, to grant the motion as toplaintiff's breach of implied warranty, fraud, and breach of good faith causes of action,and otherwise affirmed, without costs.
The court properly declined to dismiss the breach of express warranty cause ofaction. Plaintiff sufficiently alleged compliance with a condition precedent to bringing anaction under the warranty by asserting that it had retained qualified contractors to provideelevator maintenance services. In addition, assuming the truth of plaintiff's allegations, aswe must on a motion to dismiss, defendants' failure to properly service the machines mayhave "frustrated or prevented the occurrence of the condition" (ADC Orange, Inc. v Coyote Acres,Inc., 7 NY3d 484, 490 [2006] [internal quotation marks omitted]).
The court properly denied as premature defendants-appellants' motion to dismissplaintiff's request for an injunction (Warberg Opportunistic Trading Fund, L.P. v GeoResources,Inc., 112 AD3d 78, 87 [1st Dept 2013]). Equitable relief may be appropriatewhere, as alleged here, there is "difficulty and uncertainty in calculating" the damagesthat plaintiff would suffer from defendants' breach of the maintenance agreement(Pfizer Inc. v PCS Health Sys., 234 AD2d 18, 19 [1st Dept 1996]).
Plaintiff's fraud cause of action failed to allege specific facts with respect to the time,place, or manner in which defendants-appellants made the purported misrepresentations(see CPLR 3016 [b]). Plaintiff also failed to allege that the purportedly falserepresentations were made by defendants-appellants with the intent to deceive or toinduce plaintiff's reliance (seeBarbarito v Zahavi, 107 AD3d 416, 419 [1st Dept 2013]). In any case, the fraudclaim, which is premised on the allegation that defendants misrepresented that the subjectelevators were suitable for their intended purpose and were the equivalent of themachines specified in the parties' April [*2]2001 elevatormodernization contract, is time-barred by the applicable statute of limitations (CPLR 213[8]). Even accepting the truth of plaintiff's allegation that it could not have discovereddefendants-appellants' alleged fraud prior to December 31, 2009, because they or theirsubsidiary controlled the service and maintenance of the subject elevators, plaintiff failsto allege any facts to explain why it could not, with reasonable diligence, havediscovered the alleged fraud at any point after December 31, 2009, when defendantVer-Tech took over the maintenance and service of the elevators (see Lim v Kolk, 111 AD3d518, 519 [1st Dept 2013]). Equitable estoppel is not appropriate here to toll thelimitations period, because plaintiff has failed to allege any actions taken by defendantsafter December 31, 2009 to prevent plaintiff from timely commencing this action (see Putter v North Shore Univ.Hosp., 7 NY3d 548, 552-553 [2006]).
Plaintiff's second cause of action, claiming that defendants-appellants breached animplied warranty that the elevators they sold and delivered to plaintiff between April2001 and August 2005 were fit for the specific purpose for which they were purchased,is barred by the applicable four-year statute of limitations (see UCC 2-725 [1]).Plaintiff's breach of good faith cause of action is duplicative of the breach of warrantyclaim, because both claims arise from the same facts (see Logan Advisors, LLC v Patriarch Partners, LLC, 63 AD3d440, 443 [1st Dept 2009]). Concur—Gonzalez, P.J., Acosta, Saxe, Richterand Manzanet-Daniels, JJ.