Thompson v. Horwitz

• Decision Date: 21 November 2012
• Citation: Thompson v. Horwitz, 100 A.D.3d 864, 954 N.Y.S.2d 572, 2012 N.Y. Slip Op. 7983 (N.Y. App. Div. 2012)
• Parties: Marjorie THOMPSON, respondent, v. Martin HORWITZ, defendant, MFA Construction, Inc., appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 864

954 N.Y.S.2d 572

2012 N.Y. Slip Op. 07983

Marjorie THOMPSON, respondent,

v. Martin HORWITZ, defendant,MFA Construction, Inc., appellant.

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

Nov. 21, 2012.

McLaughlin & Stern, LLP, New York, N.Y. (Jon Paul Robbins of counsel), for appellant.

Larry Anthony Welch, New York, N.Y. (Choya Washington of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for breach of contract, the defendant MFA Construction, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Pfau, J.), entered January 9, 2012, as denied that branch of the motion of the defendants MFA Construction, Inc., and Martin Horwitz which was for summary judgment dismissing the complaint insofar as asserted against it as time-barred, and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability insofar as asserted against the defendant MFA Construction, Inc., and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action against the defendant MFA Construction, Inc. (hereinafter MFA), and its president, the defendant Martin Horwitz, alleging that the defendants breached an oral agreement pursuant to which the plaintiff was authorized to perform certain marketing services on behalf of the defendants. The plaintiff alleged, inter alia, that the defendants failed to pay her an agreed-upon fee for her services. The Supreme Court denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against MFA as time-barred, and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability insofar as asserted against MFA.

The Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against MFA as time-barred. “Where, as here, the claim is for payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff ‘possesses a legal right to demand payment’ ” ( Swift v. New York Med. Coll., 25 A.D.3d 686, 687, 808...