CPLR § 213 Actions to be commenced within six years
(2) an action upon a contractual obligation or liability.
Chester Med. Diagnostic, P.C. v Kemper Cas. Ins. Co., 2008 NY Slip Op 52009(U) (Civ Ct City NY, Kings County)
The fact that the defendant may have repudiated the contract on
November 29, 2000 when it issued a denial of the claim and mailed a
copy of the denial to the defendant does alter this result. Under the
doctrine of anticipatory breach, where one party clearly and
unequivocally repudiates his contractual obligations under a contract
prior to the time performance is required, the non-repudiating party
may deem the contract breached and immediately sue for damages (see American List Corp. v. U.S. News & World Report, 75 NY2d 38, 550 NYS2d 590, 549 NE2d 1161 [1989]; De Lorenzo v. Bac Agency Inc., 256 AD2d 906, 908, 681 NYS2d 846, 848 [3rd Dep't 1998]; Long Is. R.R. Co. v. Northville Indus. Corp., 41 NY2d 455, 463, 393 NYS2d 925, 362 NE2d 558 [1977]).While the plaintiff may have been entitled to bring the action
under the doctrine of anticipatory breach when the defendant denied the
claim, even though the 30 day period in which defendant had to pay the
claim had yet to expire, plaintiff was well within its rights to elect
to keep the contract in force and await the designated time for
performance before bringing suit (Ga Nun v. Palmer, 202 NY 483, 493, 96 N.E. 99 [1911]; see also, Rachmani Corp. v. 9 East 96th Street Apartment Corp., 211 AD2d 262, 266, 629 NYS2d 382, 384 [1st Dep't 1995] ). As the Court of Appeals wrote in Ga Nun:
"The man who wrongfully renounces a contract into which he has
deliberately entered cannot justly complain if he is immediately sued
for a compensation in damages by the man whom he has injured; and it
seems reasonable to allow an option to the injured party, either to sue
immediately, or to wait until the time when the act was to be done,
still holding it as prospectively binding for the exercise of this
option, which may be advantageous to the innocent party, and cannot be
prejudicial to the wrongdoer" (Ga Nun, 202 [*3]NY at 490-491, 96 N.E. at 101 – 102, citing Hochster v. De la Tour, 2 Ellis & Blackburn, 678). For the above reasons, defendant's motion for summary judgment is DENIED.
All the bold is mine, except for the word "DENIED".
In any motion for summary judgment based upon the SOL expiring on a breach of contract action, the inquiry as to when the SOL began to run starts at the breach–the date of the breach must be shown before any calculation can be made. Here, defendant tried to argue that the breach occurred when it denied the claim and that the SOL accrued from that at. The Court disagreed.
I'm all but certain that this will wind up being appealed (It isn't my case, in case you're curious). Look for an Appellate Term decision on this in the near future.
bruteforcelawyer.com 