City Store Gates Mfg. Corp. v. Empire Rolling Steel Gates Corp.

• Decision Date: 22 January 2014
• Citation: City Store Gates Mfg. Corp. v. Empire Rolling Steel Gates Corp., 2014 NY Slip Op 319, 113 A.D.3d 718, 979 N.Y.S.2d 606 (N.Y. App. Div. 2014)
• Parties: CITY STORE GATES MFG. CORP., respondent, v. EMPIRE ROLLING STEEL GATES CORP., doing business as Empire Gates New York, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 718

979 N.Y.S.2d 606

2014 N.Y. Slip Op. 00319

CITY STORE GATES MFG. CORP., respondent,

v.EMPIRE ROLLING STEEL GATES CORP., doing business as Empire Gates New York, appellant, et al., defendants.

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

Jan. 22, 2014.

George Bundy Smith & Assocs, P.C., Valley Cottage, N.Y. (Laury A. Betha of counsel), for appellant.

Davidoff Hutcher & Citron, LLP, Garden City, N.Y. (Jonathan M. Cader of counsel), for respondent.

PETER B. SKELOS, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ.

In an action, inter alia, to recover damages for conversion and unfair competition, the defendant Empire Rolling Steel Gates Corp., doing business as Empire Gates New York, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered March 26, 2012, as denied those branches of its motion which were pursuant to CPLR 3211(a)(5) to dismiss the fifth through thirteenth causes of action insofar as asserted against it, as barred by the statute of limitations.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendant Empire Rolling Steel Gates Corp., doing business as Empire Gates New York, which were pursuant to CPLR 3211(a)(5) to dismiss the fifth through ninth causes of action insofar as asserted against it, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

“As a general principle, the statute of limitations begins to run when a cause of action accrues ( seeCPLR 203[a] )” (Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765, 770, 944 N.Y.S.2d 742, 967 N.E.2d 1187). With respect to tort claims, “accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint” (Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289; see LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701, 706, 628 N.Y.S.2d 40, 651 N.E.2d 908; Bonded Waterproofing Servs., Inc. v. Anderson–Bernard Agency, Inc., 86 A.D.3d 527, 530, 927 N.Y.S.2d 133). Generally, tort claims accrue upon an injury being sustained, not upon the defendant's wrongful act or the plaintiff's discovery of the injury ( see Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009; Kronos, Inc. v. AVX Corp., 81 N.Y.2d at 94, 595 N.Y.S.2d 931, 612 N.E.2d 289).

Here, the fifth, sixth, and seventh causes of action allege that the defendant Pablo Pintado, the owner of the appellant, breached duties owed to the plaintiff, who had employed Pintado ( see generally Qosina Corp. v. C & N Packaging, Inc., 96 A.D.3d 1032, 1033, 948 N.Y.S.2d 308; Wallack Frgt. Lines v. Next Day Express, 273 A.D.2d 462, 463, 711 N.Y.S.2d 891). Since this action was commenced more than three years after Pintado left the plaintiff's employ and no longer owed such duties, those causes of action are time-barred ( see generally Kronos, Inc. v. AVX Corp., 81 N.Y.2d at 94, 595 N.Y.S.2d 931, 612 N.E.2d 289; cf. Scott v. Fields, 85 A.D.3d 756, 759, 925 N.Y.S.2d 135).

Similarly, the eighth and ninth causes of action allege, in effect, conversion committed during the course of Pintado's employment. Since a cause of action to recover damages for conversion accrues on the date the conversion occurs, and because Pintado's employment with the...