Opinion
February 27, 1992
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
The City's cross-claims are to be deemed interposed as of January 15, 1987, when the complaint was served (CPLR 203 [c]; Imperial Outfitters to Large Men v. Genesco, Inc., 95 A.D.2d 755, affd 68 N.Y.2d 732). Thus, as the City concedes, any attempt by it to recoup from Crabhouse and Leisure, in indemnification, payments made on electricity bills prior to January 15, 1981 is barred by the six-year Statute of Limitations (CPLR 213).
Otherwise, the court properly awarded partial summary judgment to the City, there being no evidence from which a clear manifestation of intent by the City to relinquish its contractual right can be reasonably inferred (Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968). Nor was any evidence adduced that the City was aware that charges for the electricity consumption in issue represented usage by Crabhouse. The City's request for an assessment of damages is based upon facts developed subsequent to the order and judgment appealed from, and should be addressed to the IAS court in a motion pursuant to CPLR 2221.
Concur — Milonas, J.P., Kupferman, Ross and Smith, JJ.