Summary
holding that one-year statute of limitations begins to accrue when plaintiff became aware of the cause of action
Summary of this case from Solomon-Lufti v. New York City Department of EducOpinion
Argued April 19, 2001
June 4, 2001
In an action, inter alia, for a judgment declaring that a stipulation of discontinuance in an earlier action is null and void, the defendant appeals from an order of Supreme Court, Suffolk County (Oshrin, J.), dated June 28, 2000, which denied its motion pursuant to CPLR 3211(a), to dismiss the complaint as time-barred.
Ingerman Smith, LLP, Northport, N.Y. (Mary Anne Sadowski of counsel), for appellant.
Canfield, Madden, Rossi, Ruggiero Crowley, LLP, Douglaston, N Y (David J. Canfield of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, ANITA R. FLORIO, THOMAS A. ADAMS, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The Supreme Court erred in determining the accrual date for the running of the Statute of Limitations. Pursuant to Education Law § 3813(2-b), an action against a school district must be commenced within one year after the cause of action arose. Here, the limitation period began on November 9, 1998, when the plaintiff, Elite Associates, Inc. (hereinafter Elite), became aware that its surety had settled its underlying breach of contract action without its consent (see, Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399; Aetna Life Cas. Co. v. Nelson, 67 N.Y.2d 169). Therefore, the commencement of the present action on January 25, 2000, was untimely as a matter of law (see, Krauz v. Commack Union Free School Dist., 203 A.D.2d 334).
Moreover, Elite cannot avail itself of the benefit of CPLR 205(a) because that section does not apply where, as here, the original action terminated by voluntary discontinuance (see, George v. Mt. Sinai Hosp., 47 N.Y.2d 170; Feit v. Emons Indus., 119 Misc.2d 157).
SANTUCCI, J.P., ALTMAN, FLORIO and ADAMS, JJ., concur.