| J.A. Lee Elec., Inc. v City of New York |
| 2014 NY Slip Op 05159 [119 AD3d 652] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 J.A. Lee Electric, Inc., Respondent, v City ofNew York, Appellant. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andMichael J. Pastor of counsel), for appellant.
Redmond Law Office, New York, N.Y. (Jason T. Melville of counsel), forrespondent.
In an action to recover damages for breach of contract, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Queens County(Flug, J.), entered April 5, 2013, as denied that branch of its motion which was pursuantto CPLR 3211 (a) (1), (5) and (7) to dismiss the second cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
On or about July 8, 2009, the plaintiff and the defendant, City of New York, by itsagency, the New York City Department of Parks and Recreation (hereinafter the DPR),entered into a contract for the construction of playgrounds at certain schoolyards inQueens. On or about April 11, 2012, the plaintiff submitted a final bill of claim to theDPR seeking, among other things, damages allegedly resulting from delays on theproject. This claim was denied by the DPR. The plaintiff thereafter commenced thisaction against the defendant to recover damages for breach of contract. The defendantmoved, inter alia, to dismiss the second cause of action pursuant to CPLR 3211 (a) (1),(5) and (7), based on the plaintiff's alleged failure to comply with certain noticeprocedures set forth in the contract. The Supreme Court denied that branch of themotion.
"A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted only if the'documentary evidence resolves all factual issues as a matter of law, and conclusivelydisposes of the plaintiff's claim' " (Fontanetta v John Doe 1, 73 AD3d 78, 83-84 [2010],quoting Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383 [2002];see Leon v Martinez, 84 NY2d 83, 88 [1994]; Guido v Orange Regional Med.Ctr., 102 AD3d 828, 830 [2013]). "Neither affidavits, deposition testimony, norletters are considered documentary evidence within the intendment of CPLR 3211 (a)(1)" (Granada Condominium IIIAssn. v Palomino, 78 AD3d 996, 997 [2010] [internal quotation marks omitted];see Suchmacher v MananaGrocery, 73 AD3d 1017, 1017 [2010]; Fontanetta v John Doe 1, 73AD3d at 86). Contrary to the defendant's contention, an affidavit by a DPR projectmanager did not constitute documentary evidence with the intendment of CPLR 3211 (a)(1) (see Granada Condominium III Assn. v Palomino, 78 AD3d at 997).
To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is[*2]barred by the applicable statute of limitations, adefendant bears the initial burden of demonstrating, prima facie, that the time withinwhich to commence the action has expired (see Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d850 [2011]; Sabadie vBurke, 47 AD3d 913, 914 [2008]). Only then does the burden shift to theplaintiff to raise a question of fact as to whether the statute of limitations was tolled orwas otherwise inapplicable, or whether it actually commenced the action within theapplicable limitations period (see Reid v Incorporated Vil. of Floral Park, 107 AD3d 777,778 [2013]; Williams v NewYork City Health & Hosps. Corp., 84 AD3d 1358, 1359 [2011]). Here, insupport of its motion, the defendant submitted the subject contract, which provided thatthe plaintiff had six months after the date of the "substantial completion" of the contractto commence an action against the defendant sounding in breach of contract. Thedefendant also submitted a letter dated March 16, 2011, that was denominated a "finalinspection report," to which was attached a punch list of outstanding items that were stillto be completed and a list of completed items that remained to be documented. In light ofthese submissions, the defendant failed to demonstrate that there had been "substantialcompletion" of the contract, which would trigger the running of the contractually fixedlimitations period. Accordingly, the defendant failed to satisfy its initial burden ofdemonstrating that the time within which the plaintiff was required to commence theaction had expired.
When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), thestandard is whether the pleading states a cause of action (see Guggenheimer vGinzburg, 43 NY2d 268, 275 [1977]; Sokol v Leader, 74 AD3d 1180, 1181-1182 [2010]). Inconsidering such a motion, "the court [must] 'accept the facts as alleged in the complaintas true, accord plaintiffs the benefit of every possible favorable inference, and determineonly whether the facts as alleged fit within any cognizable legal theory' " (Nonnon v City of New York, 9NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d at 87-88).Affidavits submitted by a defendant "will almost never warrant dismissal under CPLR3211 unless they 'establish conclusively that [the plaintiff] has no. . . cause of action' " (Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008],quoting Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]). A motion todismiss pursuant to CPLR 3211 (a) (7) in which the movant relies upon evidence beyondthe four corners of the complaint must be denied "unless it has been shown that amaterial fact as claimed by the pleader to be one is not a fact at all and unless it can besaid that no significant dispute exists regarding it" (Guggenheimer v Ginzburg,43 NY2d at 275). Here, although the defendant submitted evidence beyond thecomplaint, it failed to submit evidence demonstrating that any fact related to theplaintiff's breach of contract cause of action that was predicated on delays in the projectwas, undisputedly, not a fact at all (see Guggenheimer v Ginzburg, 43 NY2d at275; Sokol v Leader, 74 AD3d at 1182). To the contrary, the evidencedemonstrated the existence of a significant dispute as to whether the defendant receivednotice, as required by the contract, of the circumstances causing the delay.
In light of the foregoing, the Supreme Court properly denied that branch of thedefendant's motion which was pursuant to CPLR 3211 (a) (1), (5) and (7) to dismiss thesecond cause of action. Skelos, J.P., Lott, Roman and LaSalle, JJ., concur.