Opinion
September 30, 1997
Appeal from Supreme Court, New York County (Stuart Cohen, J.).
Plaintiff's attempt to recast its claim for goods sold and delivered as one based on dishonored checks and notes, and thereby bring into play the six-year limitations period of CPLR 213 (2) instead of the four-year period of UCC 2-725 , was properly rejected by the motion court for lack of merit. Plaintiff fails to show how the damages it seeks are attributable to the notes and checks on which it relies, which were produced in discovery not in their own right but as part of the evidence purporting to show the balance due on a running account that, inconsistent with the claim of dishonored paper, indicates delivery of new orders far exceeding the account balance after the last check or note had bounced ( see, Sears, Roebuck Co. v Enco Assocs., 43 N.Y.2d 389, 394-395). In any event, even if the action could be considered as one to recover on dishonored commercial paper, we would deny leave to amend the complaint to assert that theory where the original complaint did not refer to any dishonored paper, the answer alerted plaintiff to the Statute of Limitations defense, no excuse is offered for the delay in seeking leave to assert the new theory until after discovery had been completed and the case was on the calendar, such leave was first sought after the original theory had been ruled deficient ( see, Cippitelli Bros. Towing Collision v. Rosenfeld, 171 A.D.2d 637, 639), and there is a possibility that evidence has been lost during the long delay ( see, Allen v. Vuley, 223 A.D.2d 868, 869). We note that plaintiff's brief does not address the dismissal of its cause of action for account stated.
Concur — Milonas, J.P., Nardelli, Rubin, Mazzarelli and Andrias, JJ.