Opinion
1327 Index No. 653714/20 Case No.2022–04322
12-28-2023
G&Y MAINTENANCE CORP., Plaintiff–Appellant, v. MCSAM HOTEL GROUP LLC et al., Defendants–Respondents.
Law Office of J.G. Toth, Flushing (Jerry Toth of counsel), for appellant. Kaufman Dolowich & Voluck LLP, Woodbury (Adam M. Marshall of counsel), for McSam Hotel Group LLC and RS 206 LLC, respondents. Levine Singh, LLP, Hicksville (Brian M. Levine of counsel), for Core Continental Construction LLC and Chung–Lin Chiang, respondents.
Law Office of J.G. Toth, Flushing (Jerry Toth of counsel), for appellant.
Kaufman Dolowich & Voluck LLP, Woodbury (Adam M. Marshall of counsel), for McSam Hotel Group LLC and RS 206 LLC, respondents.
Levine Singh, LLP, Hicksville (Brian M. Levine of counsel), for Core Continental Construction LLC and Chung–Lin Chiang, respondents.
Manzanet–Daniels, J.P., Webber, Friedman, Shulman, Rosado, JJ.
Order, Supreme Court, New York County (Debra James, J.), entered August 19, 2022, which, insofar as appealed from as limited by the briefs, granted defendants’ motions to dismiss the complaint, unanimously affirmed, without costs.
As an initial matter, the court properly applied defendants’ dismissal motions to plaintiff's second amended complaint (see Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 38, 675 N.Y.S.2d 14 [1st Dept. 1998] ).
The second amended complaint — asserting causes of actions for breach of contract, account stated, breach of a fiduciary duty, fraud, and unjust enrichment — was properly dismissed as time-barred ( CPLR 3211[a][5] ). Plaintiff's allegations, even if accepted as true and viewed in the light most favorable to plaintiff ( Stewart v. Amber, 209 A.D.3d 513, 513, 175 N.Y.S.3d 203 [1st Dept. 2022] ), established that the claims accrued at the latest in 2013, when plaintiff became entitled to demand payment (see Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765, 770, 944 N.Y.S.2d 742, 967 N.E.2d 1187 [2012] ; Golden Tech. Mgt., LLC v. NextGen Acquisition, Inc., 138 A.D.3d 625, 30 N.Y.S.3d 87 [1st Dept. 2016], lv denied 28 N.Y.3d 914, 2017 WL 580581 [2017] ). This action was commenced more than six years later, in 2020, and is therefore untimely (see CPLR 213[2], [8] ; see also IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 139, 879 N.Y.S.2d 355, 907 N.E.2d 268 [2009] ; Maya NY, LLC v. Hagler, 106 A.D.3d 583, 585, 965 N.Y.S.2d 475 [1st Dept. 2013] ; Elie Intl., Inc. v. Macy's W. Inc., 106 A.D.3d 442, 443, 965 N.Y.S.2d 52 [1st Dept. 2013] ).
We have considered plaintiff's arguments to the contrary, including its equitable estoppel argument (see G & Y Maintenance Corp. v. Core Cont. Constr. LLC, 215 A.D.3d 553, 554, 188 N.Y.S.3d 27 [1st Dept. 2023] ), and find them unavailing.