Klein v. Parke-Bernet Galleries, Inc.

Decision Date18 June 1964
Docket NumberPARKE-BERNET
Citation21 A.D.2d 772,250 N.Y.S.2d 656
PartiesErich KLEIN, Plaintiff-Respondent-Appellant, v.GALLERIES, INC., Defendant-Appellant-Respondent.
CourtNew York Supreme Court — Appellate Division

B. Busch, New York City, for plaintiff-respondent-appellant.

G. I. Janow, New York City, for defendant-appellant-respondent.

Before BREITEL, J. P., and VALENTE, EAGER, STEUER and STALEY, JJ.

PER CURIAM.

Order, entered on June 18, 1963, granting plaintiff's motion to strike the defense of the 3-year statute of limitations as to the first cause of action, denying the motion insofar as the second, third, and fourth causes of action are concerned, and denying defendant's cross-motion for summary judgment, unanimously affirmed without costs to either party. As a general rule limitations are incidental to the remedy pursued, and the fact that a plaintiff may avail himself of a remedy with a shorter statute does not bar his pursuit of a remedy to which a longer statute is appropriate (1 Wood on Limitations [4th Ed.] § 57b; 35 N.Y.Jur., Limitations, § 10; 53 C.J.S. Limitations of Actions §§ 7, 33, 45). In the case of certain personal injury, malpractice, property damage, and perhaps some other causes of action an exception has evolved. It requires that the shorter statute, applicable to causes of action based on physical injury to person or property, be applied, even though plaintiff pleads and proves that the duty breached arose in contract to which the larger statute, pertinent to actions arising from breach of contract, would otherwise be applicable under the general rule first stated (see, e. g., Carr v. Lipshie, 8 A.D.2d 330, 187 N.Y.S.2d 564, aff'd. 9 N.Y.2d 983, 218 N.Y.S.2d 62, 176 N.E.2d 512; Atlas Assurance Co. v. Barry Tire & Service Co., 3 A.D.2d 787, 160 N.Y.S.2d 547; Federal Insurance Company v. United Port Service Co., 23 Misc.2d 142, 199 N.Y.S.2d 552 [Steuer, J.], aff'd. 12 A.D.2d 905, 214 N.Y.S.2d 638, 639, 640; for an illuminating analysis in depth, see Buyers v. Buffalo Paint & Specialties, 199 Misc. 764, 99 N.Y.S.2d 713 [Halpern, J.]; contra, Great Amer. Ind. Co. v. Lapp Insulating Co., 282 App.Div. 545, 125 N.Y.S.2d 829, mot. lv. app. dism. 306 N.Y. 851, 118 N.E.2d 910). In the cases which have so decided, the pleadings have directly involved allegations of conduct which is also tortious (short statute applicable) and physical impairment to person or property by way of direct or consequential damage. Actions based on professional malpractice may constitute a special extension of the exception, in the absence of physical injuries to person or property (e. g., Carr v. Lipshie, supra; Glens Falls Ins. Co. v. Reynolds, 3 A.D.2d 686, 159 N.Y.S.2d 95). In this case, the pleading does not depend upon such direct...

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9 cases
  • Dormitory Auth. of State v. Samson Constr. Co.
    • United States
    • New York Supreme Court
    • February 27, 2013
    ...cites several cases in support of its argument that the three-year statute of limitations should be applied (see Klein v. Parke-Bernet Galleries, 21 A.D.2d 772 (1st Dep't 1964); D'Amico v. Winkelman Co., 51 Misc. 2d 205, 208 (Sup. Ct. Onondaga Cty 1966); Hayunga Holding Corp. v. Rodgers & H......
  • Edwards v. State
    • United States
    • New York Court of Claims
    • July 6, 1978
    ...limitations is frequently applied even though plaintiff can plead and prove a cause of action in contract. (Klein v. Parke-Bernet Galleries, Inc., 21 A.D.2d 772, 250 N.Y.S.2d 656; Grossman v. Janette H. Corp., 18 A.D.2d 982, 238 N.Y.S.2d 660, affd. 14 N.Y.2d 852, 251 N.Y.S.2d 966, 200 N.E.2......
  • Werner Spitz Const. Co. v. Vanderlinde Elec. Corp.
    • United States
    • New York County Court
    • September 14, 1970
    ...N.Y. Civil Practice, par. 214.14, p. 2--238; see also par. 214.15). The case cited by the defendant, (Klein v. Parke-Bernet Galleries, Inc., 21 A.D.2d 772, 250 N.Y.S.2d 656), also decided pre-CPLR, does not enlarge its period of limitations. Although the First Department referred to the act......
  • Siegel v. Kranis
    • United States
    • New York Supreme Court — Appellate Division
    • March 25, 1968
    ...v. Reynolds, 3 A.D.2d 686, 159 N.Y.S.2d 95; Carr v. Lipshie, 8 A.D.2d 330, 187 N.Y.S.2d 564, affd. 9 N.Y.2d 983; Klein v. Parke-Bernet Galleries, 21 A.D.2d 772, 250 N.Y.S.2d 656; Mamunes v. Williamsburgh Gen. Hosp., 28 A.D.2d 998, 283 N.Y.S.2d 457). Indeed, as the critical date for filing t......
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