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Breslin v. Reality Roofing Inc.

Appellate Term of the Supreme Court of New York, Second Department
Jul 6, 2004
2004 N.Y. Slip Op. 50759 (N.Y. App. Term 2004)

Opinion

2003-1297 NC.

Decided July 6, 2004.

Appeal by defendants from an order of the District Court, Nassau County (J. Spinola, J.), entered July 18, 2003, denying their motion to dismiss the complaint.

Order unanimously modified by granting defendants' motion to the extent of dismissing the complaint as against defendant Reality Roofing of Mineola, Inc., and by dismissing the first cause of action as against defendant Reality Roofing Inc.; as so modified, affirmed without costs.

PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.


Plaintiffs hired defendants to remove the existing roof, and install a new roof, on their premises. In or about March 2003, plaintiffs commenced this action seeking $15,000 in damages for each of their three causes of action, sounding in negligence, breach of contract and breach of warranty. Defendants moved to dismiss the complaint on various grounds including that the statute of limitations had expired, the damages sought by plaintiffs exceeded the court's subject matter jurisdiction, and that documentary evidence established that the action was interposed against an improper party, to wit, defendant Reality Roofing of Mineola, Inc. By order entered July 18, 2003, the court below denied defendants' motion.

An action for property damage against contractors arising out of the performance or nonperformance of obligations under a contract is governed by the six-year contract statute of limitations ( see Sears, Roebuck Co. v. Enco Assoc., 43 NY2d 389, 395; Bank of Nova Scotia v. Structure-Tone, Inc., 303 AD2d 273; see also Cabrini Med. Center v. Desina, 64 NY2d 1059, 1061; Ruffing v. Union Carbide Corp., 308 AD2d 526). Since plaintiffs' first cause of action sounding in negligence is based on the contract between the parties, and it is uncontroverted that defendants completed the work by May 21, 1999, the court below properly determined that the statute of limitations had not expired as to said cause of action ( see CPLR 213). However, inasmuch as both the first and second causes of action assert identical breach of contract claims, the first cause of action is dismissed as duplicative.

The monetary jurisdictional limit of the District Court is $15,000, exclusive of interest and cost (UDCA 201, 202; cf. UDCA 208 [b]). It appears that the causes of action set forth in the complaint were intended as alternative theories of recovery on which plaintiffs could only recover the maximum of $15,000 ( see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, CCA 211 at 89, UDCA 211 at 477). Accordingly, the complaint does not seek to recover an amount in excess of the court's monetary jurisdictional limit.

Since it is uncontroverted that plaintiffs did not enter into a contract with Reality Roofing of Mineola, Inc., that part of the motion seeking dismissal of the complaint as to this defendant is granted. Defendant Reality Roofing Inc.'s remaining contentions lack merit.


Summaries of

Breslin v. Reality Roofing Inc.

Appellate Term of the Supreme Court of New York, Second Department
Jul 6, 2004
2004 N.Y. Slip Op. 50759 (N.Y. App. Term 2004)
Case details for

Breslin v. Reality Roofing Inc.

Case Details

Full title:CHARLES BRESLIN and STACY BRESLIN, Respondents, v. REALITY ROOFING INC…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Jul 6, 2004

Citations

2004 N.Y. Slip Op. 50759 (N.Y. App. Term 2004)

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