Cohoes Housing Authority v. Ippolito-Lutz, Inc.
| Decision Date | 26 October 1978 |
| Docket Number | IPPOLITO-LUT,INC |
| Citation | 409 N.Y.S.2d 811,65 A.D.2d 666 |
| Parties | COHOES HOUSING AUTHORITY, Respondent, v., Appellant. |
| Court | New York Supreme Court — Appellate Division |
M. Carl Levine, Morgulas & Foreman, New York City (Jerrold Morgulas, New York City, of counsel), for appellant.
Harvey & Harvey, Albany (Brian F. Mumford, Albany, of counsel), for respondent.
Before KANE, J. P., and MAIN, LARKIN, HERLIHY and MIKOLL, JJ.
Appeal from an order of the Supreme Court at Special Term, entered February 25, 1977 in Albany County, which denied defendant's motion to dismiss the complaint.
In 1963, defendant, Ippolito-Lutz, Inc., commenced an action against plaintiff, Cohoes Housing Authority, seeking damages in the amount of $320,000 for contract balances due, retainages and extras. In that action the instant plaintiff interposed an answer which included two counterclaims for liquidated damages and failure in performance of the contract.
Delayed pre-trial procedures in this 1963 action culminated in an order of Special Term striking the answer in that action and granting judgment to Ippolito-Lutz, Inc. for the amount demanded in its complaint (CPLR 3126). Thereafter, this court unanimously affirmed the order and judgment, without opinion, the Court of Appeals denied leave to appeal on November 20, 1975 and finally the United States Supreme Court denied a writ of certiorari on April 5, 1976. The instant action was commenced on May 13, 1976. Both parties agree that the present complaint contains the same allegations contained in the counterclaims interposed in the previous action.
The defendant moved to dismiss the complaint upon the ground that the matter has been previously finally determined and, accordingly the complaint is barred by Res judicata or that the complaint is not timely. Special Term rejected both contentions.
We find it unnecessary to consider the question of Res judicata as it is apparent that the complaint must be dismissed as untimely.
It is undisputed that the applicable statute of limitations for the causes of action in the complaint expired long before the action was commenced unless it has been tolled by the provisions of subdivision (a) of CPLR 205 which provides, in pertinent part, as follows:
New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment...
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...(See CPLR 3019(d); see Russo v. Iacono, App.Div., 423 N.Y.S.2d 252 (2d Dept.); see Cohoes Housing Authority v. Ippolito-Lutz, Inc., 65 A.D.2d 666, 409 N.Y.S.2d 811 (3d Dept. 1978); see Lebrecht v. Orefice, 199 Misc. 1025, 105 N.Y.S.2d 318 (App. Term, 1st Dept. 1951). 2) This is supported by......
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...A.D.2d 709, 445 N.Y.S.2d 830 (1981); Russo v. Iacono, 73 A.D.2d 913, 423 N.Y.S.2d 253, 254 (1980); Cahoes Housing Authority v. Ippolito-Lutz, Inc., 65 A.D.2d 666, 409 N.Y.S.2d 811, 812 (1978), aff'd, 49 N.Y.2d 961, 428 N.Y.S.2d 948, 406 N.E.2d 803 (1980); and Lebrecht v. Orefice, 199 Misc. ......
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...488 [1987] ; Cohoes Hous. Auth. v. Ippolito–Lutz, Inc., 49 N.Y.2d 961, 962, 428 N.Y.S.2d 948, 406 N.E.2d 803 [1980], affg. on op. below 65 A.D.2d 666, 409 N.Y.S.2d 811 [3d Dept.1978] ; Wooster v. Forty–Second St. & Grand St. Ferry R.R. Co., 71 N.Y. 471, 473 [1877] ). Since Lehman Bros. was ......
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...488 [1987] ; Cohoes Hous. Auth. v. Ippolito–Lutz, Inc., 49 N.Y.2d 961, 962, 428 N.Y.S.2d 948, 406 N.E.2d 803 [1980], affg. on op. below 65 A.D.2d 666, 409 N.Y.S.2d 811 [3d Dept.1978] ; Wooster v. Forty–Second St. & Grand St. Ferry R.R. Co., 71 N.Y. 471, 473 [1877] ). Since Lehman Bros. was ......