Summary
In Haller, plaintiff attempted to revive a time-barred claim with CPLR 203 (d), but the Appellate Division ruled that, because plaintiff's claim was not interposed as either a counterclaim or a defense, CPLR 203 (d) did not apply.
Summary of this case from Obstfeld v. Thermo Niton Analyzers LLCOpinion
June 8, 2000.
Order, Supreme Court, New York County (Paula Omansky, J.), entered December 17, 1999, which, in this declaratory judgment action, granted defendant's motion to dismiss plaintiffs' complaint, unanimously modified, on the law, to declare in defendant cooperative corporation's favor that plaintiff cooperative corporation shareholders may not avoid payment of defendant's major capital improvement assessment upon the grounds advanced in this action, and otherwise affirmed, without costs.
Pro Se David W. Haller, for plaintiffs-appellants.
Maria I. Beltrani, for defendant-respondent.
Before: Tom, J.P., Wallach, Rubin, Saxe, Buckley, JJ.
The claim upon which plaintiffs' asserted right to avoid payment of major capital improvement assessments levied by defendant cooperative corporation is premised, namely, that there were misrepresentations as to the need for major capital improvements made by defendant in the contract pursuant to which plaintiffs purchased their shares in defendant cooperative corporation from defendant, is time-barred by the applicable one-year limitation period contained in the contract of sale, and such claim is not revived by CPLR 203(d) since it is asserted in the present context neither as a counterclaim nor a defense. Moreover, inasmuch as certain claims for unpaid building improvement assessments that may be asserted by defendant against plaintiffs relate to defendant's right to performance under the terms of the proprietary lease, any counterclaims arising out of the negotiation and events leading up to the execution of the lease, including those arising from an alleged breach of provisions or misrepresentations contained in the contract of sale, would not be revived pursuant to CPLR 203(d) (see, SCM Corp. v. Fisher Park Lane Co., 40 N.Y.2d 788, 791-792; Levy v. Kendricks, 170 A.D.2d 387). We modify only to declare explicitly what is implied by Supreme Court's disposition (see, Lanza v. Wagner, 11 N.Y.2d 317,cert denied 371 U.S. 901).
We have considered plaintiffs' remaining contentions and find them to be unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.