J.A. Lee Elec., Inc. v. City of N.Y.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: J.A. Lee Elec., Inc. v. City of N.Y., 119 A.D.3d 652, 990 N.Y.S.2d 223, 2014 N.Y. Slip Op. 5159 (N.Y. App. Div. 2014)
• Decision Date: 09 July 2014
• Parties: J.A. LEE ELECTRIC, INC., respondent, v. CITY OF NEW YORK, appellant.

119 A.D.3d 652

990 N.Y.S.2d 223

2014 N.Y. Slip Op. 05159

J.A. LEE ELECTRIC, INC., respondent,

v.CITY OF NEW YORK, appellant.

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

July 9, 2014.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Michael J. Pastor of counsel), for appellant.

Redmond Law Office, New York, N.Y. (Jason T. Melville of counsel), for respondent.

PETER B. SKELOS, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for breach of contract, the defendant appeals, as limited 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 pursuant to 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 its agency, the New York City Department of Parks and Recreation (hereinafter the DPR), entered into a contract for the construction of playgrounds at certain schoolyards in Queens. On or about April 11, 2012, the plaintiff submitted a final bill of claim to the DPR seeking, among other things, damages allegedly resulting from delays on the project. This claim was denied by the DPR. The plaintiff thereafter commenced this action against the defendant to recover damages for breach of contract. The defendant moved, 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 notice procedures set forth in the contract. The Supreme Court denied that branch of the motion.

“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 conclusively disposes of the plaintiff's claim’ ” ( Fontanetta v. John Doe 1, 73 A.D.3d 78, 83–84, 898 N.Y.S.2d 569, quoting Fortis Fin. Servs. v. Fimat Futures USA, 290 A.D.2d 383, 383, 737 N.Y.S.2d 40;see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Guido v. Orange Regional Med. Ctr., 102 A.D.3d 828, 830, 958 N.Y.S.2d 195). “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” [internal quotation marks omitted] ( Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 997, 913 N.Y.S.2d 668;see Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 1017, 900 N.Y.S.2d 686;Fontanetta v. John Doe 1, 73 A.D.3d at 86, 898 N.Y.S.2d 569). Contrary to the defendant's contention, an affidavit by a DPR project manager did not constitute documentary evidence with the intendment of CPLR 3211(a)(1) ( see Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668).

To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired ( see Fleetwood Agency, Inc. v. Verde Elec. Corp., 85 A.D.3d 850, 925 N.Y.S.2d 576;Sabadie v. Burke, 47 A.D.3d 913, 914, 849 N.Y.S.2d 440). Only then does the burden shift to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period ( see Reid v. Incorporated Vil. of Floral Park, 107 A.D.3d 777, 778, 967 N.Y.S.2d 135;Williams v. New York City Health & Hosps. Corp., 84 A.D.3d 1358, 1359, 923 N.Y.S.2d 908). Here, in support of its motion, the defendant submitted the subject contract, which provided that the plaintiff had six months after the date of the “substantial completion” of the contract to commence an action against the defendant sounding in breach of contract. The defendant also submitted a letter dated March 16, 2011, that was denominated a “final inspection report,” to which was attached a punch list of outstanding items that were still to be completed and a list of completed items that remained to be documented. In light of these submissions, the defendant failed to demonstrate that there had been “substantial completion” of the contract, which would trigger the running of the contractually fixed limitations period. Accordingly, the defendant failed to satisfy its initial burden of demonstrating that the time within which the plaintiff was required to commence the action had expired.

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action ( see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;Sokol v. Leader, 74 A.D.3d 1180, 1181–1182, 904 N.Y.S.2d 153). In considering such a motion, “the court [must] ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable...