Opinion
04-370, 570566/04.
Decided October 5, 2005.
Plaintiff appeals from a judgment of the Civil Court, New York County, entered June 15, 2004 (Geoffrey D. Wright, J.) which dismissed her complaint in the midst of trial on grounds of statute of limitations.
Judgment entered June 15, 2004 (Geoffrey D. Wright, J.) reversed, the first, second and fourth causes of action reinstated, and matter remanded for a new trial.
PRESENT: December 2004 Term Suarez, P.J., Gangel-Jacob, Schoenfeld, JJ.
The pro se plaintiff consulted with defendant in 1996 about extensive dental work, initially estimated to cost approximately $28,800. After vacillating about whether to undertake such treatment, plaintiff was convinced by her sister to proceed. The sister made an "up front" payment of $5,000 to defendant, and a brother in Korea wired to defendant two $4,000 payments. In an April 1997 statement, defendant acknowledged the siblings' payments and made it clear that discontinuance of the treatment plan at this point would warrant a refund of little more than one third of those payments. By this time the estimate for the full treatment plan was set at $38,400. Later that month, plaintiff decided not to go forward with the contemplated treatment. In response to a request from plaintiff's brother, defendant acknowledged, in November 1997, an indebtedness only in the amount of the aforesaid refund. This action was commenced in September 2003, seeking damages for failure to provide services, failure to return money, emotional injury, and payment in exchange for only partial performance.
In April 2004 Judge Jeffrey K. Oing denied defendant's motion for dismissal based on statute of limitations. Two months later, the trial Judge dismissed the case on that same ground, in light of the commencement of this action six years and two months after plaintiff had stopped seeing defendant. That ruling ignored the law of the case, wherein Judge Oing had correctly determined that the first, second and fourth causes of action accrued as late as November 1997, when defendant acknowledged in writing that he owed plaintiff a refund (General Obligations Law § 17-101; Atlantic Natl. Trust v. Silver, 9 AD3d 321).
We note that plaintiff's standing in this action is not compromised by the fact that payments were made by her siblings, inasmuch as she was clearly the beneficiary of the contract ( Goodman-Marks Assoc. v. Westbury Post Assoc., 70 AD2d 145).
This constitutes the decision and order of the Court.
I concur.