3211(a) Capacity

Rely-On-Us, Inc. v Torres, 2018 NY Slip Op 06583 [2d 2018]

Contrary to the plaintiff’s contention, although a dismissal for lack of capacity to sue is not a dismissal on the merits (see Matter of United Envtl. Techniques v State of N.Y. Dept. of Health, 88 NY2d 824, 825; Robles v Brooklyn-Queens Nursing Home, Inc., 131 AD3d 1032, 1033), “[a] judgment of default which has not been vacated is conclusive for res judicata purposes, and encompasses the issues which were raised or could have been raised in the prior action” (Tromba v Eastern Fed. Sav. Bank, FSB, 148 AD3d 753, 754; see Albanez v Charles, 134 AD3d 657, 658; 83-17 Broadway Corp. v Debcon Fin. Servs., Inc., 39 AD3d 583, 585; Martins v Wood, 251 AD2d 465). Consequently, the dismissal, on default, of a prior action to foreclose the mortgage, as well as the default judgment taken in the action pursuant to RPAPL 1501(4) (see Torres v Rely On Us, Inc., _____ AD3d _____ [decided herewith]), bar the plaintiff’s cause of action to foreclose the mortgage (see Trisingh Enters. v Kessler, 249 AD2d 45).

Further, “[a] cause of action seeking reformation of an instrument on the ground of mistake, including an alleged scrivener’s error, is governed by the six-year statute of limitations pursuant to CPLR 213(6), which begins to run on the date the mistake was made” (Lopez v Lopez, 133 AD3d 722, 723; see Matter of Wallace v 600 Partners Co., 86 NY2d 543, 547). Here, the cause of action seeking reformation is time-barred since the note, including the alleged scrivener’s error regarding the lender’s name, was made in 2006, yet the plaintiff commenced this action in 2015. Moreover, under the circumstances of this case, absent reformation of the note, the plaintiff cannot recover on the note (see UCC 3-202[1]; 3-301).

Accordingly, we agree with the Supreme Court’s determination to grant that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and to deny the plaintiff’s cross motion, inter alia, for leave to amend the complaint and to reform the note.

The bold is mine

SOL on conversation and unjust enrichment

L.G.B. Dev., Inc. v Shammas, 2018 NY Slip Op 03967 [2d. Dept. 2018]

These causes of action sought damages for conversion and unjust enrichment and were barred by the three-year limitations period provided in CPLR 214(3) (see Stewart v GDC Tower at Greystone, 138 AD3d 729Ingrami v Rovner, 45 AD3d 806).

Ingrami v Rovner, 45 AD3d 806 [2d Dept. 2007]

The statute of limitations on an unjust enrichment claim begins to run upon the occurrence of the wrongful act giving rise to the duty of restitution (id.). 


CPLR § 213; CPLR § 203; Fraud SOL; Ct. App.

CPLR § 213 Actions to be commenced within six years

CPLR § 203 Method of computing periods of limitation generally

Sargiss v Magarelli, 2009 NY Slip Op 04301 (Ct. App. , 2009)

With respect to the timeliness of plaintiff's action, a fraud-based
action must be commenced within six years of the fraud or within two
years from the time the plaintiff discovered the fraud or "could with
reasonable diligence have discovered it" (CPLR 213 [8]; see
CPLR 203 [g]). The inquiry as to whether a plaintiff could, with
reasonable diligence, have discovered the fraud turns on whether the
plaintiff was "possessed of knowledge of facts from which [the fraud]
could be reasonably inferred" (Erbe v Lincoln Rochester Trust Co.,
3 NY2d 321, 326 [1957]). "Generally, knowledge of the fraudulent act is
required and mere suspicion will not constitute a sufficient
substitute" (id.). "Where it does not conclusively appear that a
plaintiff had knowledge of facts from which the fraud could reasonably
be inferred, a complaint [*4]should not be dismissed on motion and the question should be left to the trier of the facts" (Trepuk v Frank, 44 NY2d 723, 725 [1978]; see Erbe,
3 NY2d at 326).
There is no indication that plaintiff had knowledge of
the alleged fraud prior to her daughter's discovery of certain
financial documents in decedent's California home after his death, and
there is no dispute that plaintiff commenced this action within two
years of this discovery. Moreover, on the record before us, it is
unclear how plaintiff could have discovered the alleged fraud earlier
than she did.

The bold is mine.

CPLR § 213

CPLR § 213 Actions to be commenced within six years

Prand Corp. v County of Suffolk, 2009 NY Slip Op 03708 (App. Div., 2nd, 2009)

blockquoteA cause of action for rescission based on mistake runs from the date of the alleged mistake or actionable wrong (see CPLR 213[6]; Zavaglia v Gardner, 245
AD2d 446). Here, the cause of action for rescission of the contract
accrued on the date that the price was set in the contract, which was
the date when the contract was fully executed (see Zavaglia v Gardner, 245 AD2d 446; cf. First Natl. Bank of Rochester v Volpe, 217
AD2d 967, 968). Consequently, the cause of action seeking rescission of
the contract of sale on the ground of mutual mistake, which was brought
more than six years after the contract was fully executed, was untimely

(see Zavaglia v Gardner, 245 AD2d 446).

A cause of action alleging fraud is timely if it is commenced
either within six years from the time of the fraud, or within two years
after the plaintiff discovers, or with reasonable diligence could have
discovered, the fraud (see CPLR 213[8]
; Pericon v Ruck, 56 AD3d 635, 636; Oggioni v Oggioni, 46 AD3d 646, 648; Town of Poughkeepsie v Espie, 41 AD3d 701, 705; Shannon v Gordon, 249
AD2d 291, 292). The test as to when a plaintiff, with reasonable
diligence, could have discovered an alleged fraud is an objective one (see Prestandrea v Stein, 262
AD2d 621, 622). Here, notice to the plaintiff of the Attorney General's
action in 2002 clearly triggered a duty on the part of the plaintiff to
inquire as to potential fraud with respect to the contract of sale (see Shannon v Gordon, 249 AD2d at 292; cf. Pericon v Ruck, 56
AD3d at 636). Inasmuch as the plaintiff did not commence the instant
action until more than six years after the time of the alleged fraud,
and more than two years after the plaintiff, with reasonable diligence,
could have discovered the alleged fraud, the cause of action for
rescission based upon fraudulent inducement is barred by the statute of
limitations (see CPLR 213[8]
; Oggioni v Oggioni, 46 AD3d at 648).blockquote

The bold is mine.

CPLR § 213(8); CPLR § 203(f)

CPLR § 213 Actions to be commenced within six years

8. an action based upon fraud

CPLR § 203 Method of computing periods of limitation generally

(f) Claim in amended pleading

B.B.C.F.D., S.A. v Bank Julius Baer & Co. Ltd., 2009 NY Slip Op 03622 (App. Div., 1st, 2009)

The facts underlying Ivcher's proposed cross claims have been known
to him since no later than 2004, if not as long ago as late 2001. His
delay until August 2007 in requesting leave to amend his answer is
(see Chichilnisky v The Trustees of Columbia Univ. in City of N.Y., 49 AD3d 388, 389 [2008]; Spence v Bear Stearns & Co., 264 AD2d 601 [1999]).

Moreover, allowing the proposed amendment, which concerns events
that took place no later than 1999, would significantly alter the
status of this litigation by adding multiple new cross claims and a new
cross-claim plaintiff, effectively resurrecting two cases that, after
many years of litigation, are close to being resolved. In any event,
the new cross claims are untimely (see CPLR 213[8]), and the
"relation back" provision of CPLR 203(f) does not apply because "the
original pleading does not give notice of the transactions,
occurrences, or series of transactions or occurrences, to be proved
pursuant to the amended pleading."

The bold is mine.

CPLR § 213(2) Statute of Limitations and Anticipatory Breach of Contract

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.