Opinion
2018–10188 Index No. 87/18
08-11-2021
Michael CARPENITO, et al., appellants, v. Lawrence I. LINKSMAN, et al., respondents, et al., defendants.
William A. Schilling, Jr., P.C. (Michael V. Caruso, P.C., Brewster, NY), for appellants. Benowich Law, LLP, White Plains, N.Y. (Leonard Benowich of counsel), for respondents.
William A. Schilling, Jr., P.C. (Michael V. Caruso, P.C., Brewster, NY), for appellants.
Benowich Law, LLP, White Plains, N.Y. (Leonard Benowich of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action, in effect, to recover on a promissory note, the plaintiffs appeal from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated July 12, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendants Lawrence I. Linksman and Fundex Properties Corp. which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them and, in effect, denied, as academic, that branch of the plaintiffs’ cross motion which was to amend the complaint to add new allegations against those defendants.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On or about January 2, 2018, the plaintiffs commenced this action, in effect, to recover on a promissory note that by its terms had matured in 2008. The defendants Lawrence I. Linksman and Fundex Properties Corp. (hereinafter together the Linksman defendants) moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on various grounds, including that the complaint was time-barred and for failure to state a cause of action. In opposition, the plaintiffs argued, among other things, that the Linksman defendants had reaffirmed the debt, thus reviving the statute of limitations, or that they should be equitably estopped from invoking the statute of limitations as a ground to dismiss the complaint. The plaintiffs also cross-moved for leave to amend the complaint.
In an order dated July 12, 2018, the Supreme Court, inter alia, granted that branch of the Linksman defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the ground that it was time-barred and, in effect, denied, as academic, that branch of the plaintiffs’ cross motion which was to amend the complaint to add new allegations against the Linksman defendants. The plaintiffs appeal.
The complaint, which, regardless of how the various causes of action therein are delineated, effectively seeks to recover on the promissory note, was not timely commenced within the applicable six-year statute of limitations (see CPLR 213[2] ; Sce v. Ach, 56 A.D.3d 457, 458, 867 N.Y.S.2d 140 ; see also UCC 3–122 [1][a] ; Scionti v. Reid, 238 A.D.2d 496, 497, 657 N.Y.S.2d 907 ; see generally Cabrini Med. Ctr. v. Desina, 64 N.Y.2d 1059, 1061–1062, 489 N.Y.S.2d 872, 479 N.E.2d 217 ; Maya NY, LLC v. Hagler, 106 A.D.3d 583, 585, 965 N.Y.S.2d 475 ). Contrary to the plaintiffs’ contentions, they failed to demonstrate that the Linksman defendants reaffirmed the debt so as to revive the statute of limitations (see General Obligations Law § 17–101 ; Pugni v. Giannini, 163 A.D.3d 1018, 1019–1020, 83 N.Y.S.3d 491 ; Park Assoc. v. Crescent Park Assoc., 159 A.D.2d 460, 461, 552 N.Y.S.2d 314 ; cf. e.g. Banco do Brasil v. State of Antigua & Barbuda, 268 A.D.2d 75, 76–77, 707 N.Y.S.2d 151 ; cf. also Seattle Pac. Indus., Inc. v. Golden Val. Realty Assoc., 54 A.D.3d 930, 932, 864 N.Y.S.2d 500 ; Cognetta v. Valencia Devs., Inc., 8 A.D.3d 318, 319–320, 778 N.Y.S.2d 80 ) or that they should be equitably estopped from invoking the statute of limitations as a ground to dismiss the complaint (see generally Zumpano v. Quinn, 6 N.Y.3d 666, 674, 816 N.Y.S.2d 703, 849 N.E.2d 926 ; Simcuski v. Saeli, 44 N.Y.2d 442, 448–449, 406 N.Y.S.2d 259, 377 N.E.2d 713 ; Campbell v. Chabot, 189 A.D.2d 746, 747, 592 N.Y.S.2d 423 ). Accordingly, the Supreme Court properly granted that branch of the Linksman defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the ground that it was time-barred.
In light of the foregoing, the Supreme Court properly, in effect, denied, as acadmic, that branch of the plaintiffs’ cross motion which was to amend the complaint to add new allegations against the Linksman defendants (see generally Davies v. Incorporated Vil. of E. Rockaway, 272 A.D.2d 503, 504, 708 N.Y.S.2d 147 ).
CHAMBERS, J.P., BRATHWAITE NELSON, CHRISTOPHER and FORD, JJ., concur.