| Elia v Perla |
| 2017 NY Slip Op 03930 [150 AD3d 962] |
| May 17, 2017 |
| Appellate Division, Second Department |
[*1]
| Samir Elia, Also Known as Samyr Elia,Appellant, v Daniel Perla et al., Respondents. |
Regosin, Edwards, Stone & Feder (Alexander J. Wulwick, New York, NY, of counsel),for appellant.
Cooperman Lester Miller Carus, LLP, Manhasset, NY (Eric Gruber of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by his brief, from (1) so much of an order of the Supreme Court, Nassau County(Driscoll, J.), dated September 21, 2015, as reserved decision on that branch of the defendants'motion which was pursuant to CPLR 3211 (a) (5) to dismiss as time-barred so much of the firstcause of action as was predicated upon loans that allegedly were made more than six years priorto the commencement of the action, and (2) so much of an order of the same court dated January7, 2016, as granted that branch of the defendants' motion which was pursuant to CPLR 3211 (a)(5) to dismiss as time-barred so much of the first cause of action as was predicated upon loansthat allegedly were made more than six years prior to the commencement of the action.
Ordered that the appeal from the order dated September 21, 2015, is dismissed, as theplaintiff is not aggrieved by the portion of the order appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144,156-157 [2010]; see also Katz v Katz, 68 AD2d 536, 542-543 [1979]), and, in any event,the portion of the order appealed from was superseded by the order dated January 7, 2016 (see Zdunczyk v Ginther, 15 AD3d574, 574 [2005]); and it is further,
Ordered that the order dated January 7, 2016, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff commenced this action in November 2013, to recover damages for, among otherthings, breach of contract. The plaintiff alleged that he made a series of loans to the defendantswhich totaled more than $1,024,997.18. The amended complaint reflects that the first of theseloans was made no later than July 2006, and that the last two loans were made in December2007. The amended complaint alleged that the parties' agreement did not specify any particulartime when these loans would become due (cf. UCC 3-108), and that the defendantsagreed to repay the loans within three months after the plaintiff made a demand for repayment.The alleged agreement did not place any conditions upon the plaintiff's right to demand [*2]repayment such that the plaintiff was free to demand repayment atany time.
The defendants moved, inter alia, pursuant to CPLR 3211 (a) (5) to dismiss as time-barred somuch of the first cause of action as was predicated upon loans that allegedly were made morethan six years prior to the commencement of the action. In the first order appealed from, theSupreme Court, among other things, reserved decision on that branch of the defendants' motion.In the second order appealed from, the Supreme Court, inter alia, granted that branch of thedefendants' motion.
In resolving a motion to dismiss pursuant to CPLR 3211 (a) (5), this Court must accept thefacts as alleged in the complaint as true and accord the plaintiff the benefit of every possiblefavorable inference (see Faison vLewis, 25 NY3d 220, 224 [2015]; Ford v Phillips, 121 AD3d 1232, 1234 [2014]; 6D Farm Corp. v Carr, 63 AD3d903, 905 [2009]; see also Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "To dismissa cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the applicablestatute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that thetime within which to commence the action has expired" (Stewart v GDC Tower at Greystone, 138 AD3d 729, 729 [2016];see Campone v Panos, 142 AD3d1126, 1127 [2016]). "If the defendant satisfies this burden, the burden shifts to the plaintiffto raise a question of fact as to whether the statute of limitations was tolled or otherwiseinapplicable, or whether the plaintiff actually commenced the action within the applicablelimitations period" (Barry v CadmanTowers, Inc., 136 AD3d 951, 952 [2016]; see Stewart v GDC Tower atGreystone, 138 AD3d at 730).
"The time within which an action must be commenced, except as otherwise expresslyprescribed, shall be computed from the time the cause of action accrued to the time the claim isinterposed" (CPLR 203 [a]; see HahnAutomotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765, 770 [2012])."In contract actions . . . a claim generally accrues at the time of the breach"(Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d at 770; seeEly-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993]).
"Where, as here, the claim is for payment of a sum of money allegedly owed pursuant to acontract, the cause of action accrues when the plaintiff 'possesses a legal right to demandpayment' " (Swift v New YorkMed. Coll., 25 AD3d 686, 687 [2006], quoting Matter of Prote Contr. Co. v Board ofEduc. of City of N. Y., 198 AD2d 418, 420 [1993]; see City of New York v State of NewYork, 40 NY2d 659, 668 [1976]; Minskoff Grant Realty & Mgt. Corp. v 211 Mgr. Corp., 71 AD3d843, 845 [2010]; Kuo v Wall St.Mtge. Bankers, Ltd., 65 AD3d 1089, 1090 [2009]). Since a lender who has made a loanwhich is repayable on demand has the immediate legal right to demand payment upon theissuance of the loan (see McMullen v Rafferty, 89 NY 456, 459 [1882]; Environics,Inc. v Pratt, 50 AD2d 552, 552-553 [1975]; Knapp v Greene, 29 NYS 350 [Sup Ct,Gen Term, 1st Dept 1894]), courts have consistently held that "[a] cause of action to recover on anote which is payable on demand accrues at the time of its execution" (Morrison v Zaglool, 88 AD3d 856,858 [2011]; see Phoenix Acquisition Corp. v Campcore, Inc., 81 NY2d 138, 143 [1993];McMullen v Rafferty, 89 NY at 459; Sce v Ach, 56 AD3d 457, 458 [2008]; Lynford v Williams, 34 AD3d 761,762 [2006]; Shelley v Dixon Equities, 300 AD2d 566, 567 [2002]; see also 81NY Jur 2d, Negotiable Instruments and Other Commercial Paper § 665; cf.UCC 3-122 [1] [b]). Notably, "the statute of limitations in [such] cases [is] triggered when theparty that was owed money had the right to demand payment, not when it actually made thedemand" (Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d at771; see Environics, Inc. v Pratt, 50 AD2d at 553; see also CPLR 206 [a]; seegenerally 81 NY Jur 2d, Negotiable Instruments and Other Commercial Paper§ 665).
Here, the parties' agreement, as alleged in the amended complaint, provided that the sumsloaned to the defendants were repayable on demand. Accordingly, the plaintiff possessed a legalright to demand payment at the time that each loan was advanced to the defendants, and thestatute of limitations began to run at each of those respective times (see Hahn AutomotiveWarehouse, Inc. v American Zurich Ins. Co., 18 NY3d at 771; Phoenix Acquisition Corp.v Campcore, Inc., 81 NY2d at 143; McMullen v Rafferty, 89 NY at 459;Morrison v Zaglool, 88 AD3d at 858; Sce v Ach, 56 AD3d at 458; Lynford vWilliams, 34 AD3d at 762; Shelley v Dixon Equities, 300 AD2d at 567). Contrary tothe plaintiff's contention, the three-month period for repayment [*3]following a demand did not constitute a condition that had to befulfilled before the right to final payment arose (see Environics, Inc. v Pratt, 50 AD2d552, 552-553 [1975]; Knapp v Greene, 29 NYS 350 [1894]; see also CPLR 206[a]; see generally 81 NY Jur 2d, Negotiable Instruments and Other Commercial Paper§ 665; cf. John J. Kassner & Co. v City of New York, 46 NY2d 544,550 [1979]). Accordingly, the Supreme Court properly granted that branch of the defendants'motion which was pursuant to CPLR 3211 (a) (5) to dismiss as time-barred so much of the firstcause of action as was predicated upon loans that allegedly were made more than six years priorto the commencement of the action. Balkin, J.P., Cohen, Miller and Brathwaite Nelson, JJ.,concur.