Nat'l Urban Ventures, Inc. v. City of Niagara Falls

• Decision Date: 12 November 2010
• Parties: NATIONAL URBAN VENTURES, INC., the Niagara Venture, and Niagara Splash, Inc., Plaintiffs-Appellants, v. CITY OF NIAGARA FALLS and Niagara Falls Urban Renewal Agency, Defendants-Respondents. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 615
78 A.D.3d 1525

NATIONAL URBAN VENTURES, INC., the Niagara Venture, and Niagara Splash, Inc., Plaintiffs-Appellants,
v.
CITY OF NIAGARA FALLS and Niagara Falls Urban Renewal Agency, Defendants-Respondents. (Appeal No. 1.)

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

Nov. 12, 2010.

910 N.Y.S.2d 616

Law Offices Of John P. Bartolomei & Associates, Niagara Falls (John P. Bartolomei of Counsel), for Plaintiffs-Appellants.

Craig H. Johnson, Corporation Counsel, Niagara Falls (Richard I. Zucco of Counsel), for Defendants-Respondents.

PRESENT: MARTOCHE, J.P., LINDLEY, SCONIERS, PINE, AND GORSKI, JJ.

MEMORANDUM:

78 A.D.3d 1526

Plaintiffs commenced this action seeking specific performance of a lease agreement or, alternatively, damages in the event that specific performance was no longer an available remedy. We conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint inasmuch as the action is time-barred. The statute of limitations for a breach of contract action is six years ( see CPLR 213[2] ), and the statute of limitations generally begins to run "from the time the cause of action accrued" (CPLR 203[a] ). "In New York, a breach of contract cause of action accrues at the time of the breach," even in the event that damages do not accrue until a later date ( Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985; see John J. Kassner & Co. v. City of New York, 46 N.Y.2d 544, 550, 415 N.Y.S.2d 785, 389 N.E.2d 99). We note in addition that the statute of limitations begins to run from the date of the first alleged breach ( see Sullivan v. Troser Mgt., Inc., 15 A.D.3d 1011, 791 N.Y.S.2d 231). Here, defendants purported to terminate the lease agreement in 1992 and again in 2000, following an amendment to the lease agreement. Plaintiffs did not commence this action until 2008, well beyond the six-year statute of limitations.

Contrary to plaintiffs' contention, the statute of limitations was not tolled by virtue of other actions between the parties. Although "[a]n acknowledgment will toll or restart the running of the applicable statute

910 N.Y.S.2d 617

of limitations if it is in writing, recognizes the existence of the obligation and contains nothing inconsistent with an intent to honor the obligation" ( id. at 1011-1012, 791 N.Y.S.2d 231), nothing in the declaratory judgment action commenced by defendants in 2000 constituted an acknowledgment...