Roslyn Sav. Bank v. National Westminster Bank USA

• Decision Date: 08 November 1999
• Citation: 699 N.Y.S.2d 421
• Parties: ROSLYN SAVINGS BANK, respondent, v. NATIONAL WESTMINSTER BANK USA, appellant.
• Court: New York Supreme Court — Appellate Division

Page 421

699 N.Y.S.2d 421

ROSLYN SAVINGS BANK, respondent, v. NATIONAL WESTMINSTER BANK USA, appellant.

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

Nov. 8, 1999.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Constantine A. Despotakis and Marianne A. Campolongo of counsel), for appellant.

Payne, Wood & Littlejohn, Melville, N.Y. (Philip C. Kilian, John P. McEntee, and Daren A. Rathkopf of counsel), for respondent.

GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, SONDRA MILLER and THOMAS R. SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 8, 1998, as denied those branches of its motion which were for summary judgment dismissing the first, second, third, fifth, and sixth causes of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion for summary judgment is granted in its entirety, and the complaint is dismissed.

In its first cause of action, the plaintiff, Roslyn Savings Bank (hereinafter Roslyn Savings), alleged that the defendant National Westminster Bank USA (hereinafter NatWest), breached an "Account Reconciliation Agreement" by failing to provide the check reconciliation services envisioned by that agreement. However, it is uncontroverted that the breaches alleged by Roslyn Savings, mismatching checks so that the checks issued by it were listed as unpaid and failing to provide reports in accordance with the agreement, occurred during 1987 to 1988, at the latest. Accordingly, its breach of contract cause of action interposed in March 1995, more than six years after the alleged breaches, was untimely (see, CPLR 203[a], 213; Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985). Roslyn Savings' reliance on the continuous contract doctrine is misplaced (see, Airco Alloys Div. v. Niagara Mohawk Power Corp., 76 A.D.2d 68, 80-81, 430 N.Y.S.2d 179). The $1.3 million discrepancy, representing the outstanding balance of unpaid checks, occurred as early as September 1987, according to Roslyn Savings' allegations, and NatWest's repetition of this discrepancy was not a separate breach that started the claim to accrue anew. Also, Roslyn Savings' failure to act until approximately 21 months after it asserted that NatWest admitted that the reconciliation data was lost precludes it from invoking estoppel to avoid the application of the Statute of...