225 ADC Realty Corp. v. Popular Jewelry Corp.

• Docket Number: 1274,Index No. 651440/19,Case No. 2023–01994
• Decision Date: 19 December 2023
• Citation: 222 A.D.3d 510,202 N.Y.S.3d 75
• Parties: 225 ADC REALTY CORP., Plaintiff–Appellant, v. POPULAR JEWELRY CORP. also known as Popular Jewelry Inc., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

222 A.D.3d 510

202 N.Y.S.3d 75

225 ADC REALTY CORP., Plaintiff–Appellant,

v.POPULAR JEWELRY CORP. also known as Popular Jewelry Inc., Defendant–Respondent.

1274

Index No. 651440/19

Case No. 2023–01994

Supreme Court, Appellate Division, First Department, New York.

Entered: December 19, 2023

Baltzis Daigle LLP, New York (Konstantinos Baltzis of counsel), for appellant.

Himmelstein McConnell Gribben & Joseph LLP, New York (Jesse Gribben of counsel), for respondent.

Singh, J.P., Friedman, Gesmer, Shulman, O'NeillLevy, JJ.

Order, Supreme Court, New York County (Lucy Billings, J.), entered September 27, 2022, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(5) based upon the expiration of the statute of limitations, unanimously affirmed, with costs.

As an initial matter, plaintiff argued that the court should not have granted the motion because defendant did not annex the pleadings to its initial motion papers.However, CPLR 2001 gives the court discretion to permit an omission, mistake, or defect to be corrected upon such terms as may be just so long as a substantial right of a party is not prejudiced.The court providently exercised its discretion in permitting defendant to attach the pleadings to its reply papers, especially because those papers were electronically filed and readily available to the court and both parties(seePandian v. New York Health & Hosps. Corp.,54 A.D.3d 590, 591, 863 N.Y.S.2d 668[1st Dept.2008];Studio A Showroom, LLC v. Yoon,99 A.D.3d 632, 952 N.Y.S.2d 879[1st Dept.2012] ).

The court properly found that the action is barred by the six-year statute of limitations applicable to breach of contract claims.The statute of limitations for breach of contract begins to run at the time of the alleged breach (see e.g.Meadowbrook Farms Homeowners Assn., Inc. v. JZG Resources, Inc.,105 A.D.3d 820, 822, 963 N.Y.S.2d 300[2d Dept.2013], lv dismissed21 N.Y.3d 1024, 972 N.Y.S.2d 209, 995 N.E.2d 171[2013] ), which the complaint alleged occurred in 2011, over six years before this action was commenced.The continuing wrong doctrine may be applied where there is a series of continuing wrongs that tolls the running of the limitations period to the date of the last wrongful act (seeCapruso v. Village of Kings Point,23 N.Y.3d 631, 641, 992 N.Y.S.2d 469, 16 N.E.3d 527[2014];see alsoHenry v. Bank of Am.,147 A.D.3d 599, 601, 48 N.Y.S.3d 67[1st Dept.2017] ).Here, plaintiff alleged a single breach that...