Opinion
2002-04135.
Submitted October 20, 2003.
November 24, 2003.
In an action, inter alia, for a judgment declaring that the defendants are obligated to indemnify the plaintiff in an action entitled Rita Cohen Realty Services, Ltd., d/b/a Prudential-RCR Realtors v. CB Richard Ellis, Inc., pending in the Supreme Court, Westchester County, under Index No. 1061/00, the defendants appeal from an order of the Supreme Court, Westchester County (Rudolph, J.), entered March 27, 2002, which granted the plaintiff's motion to dismiss their first, second, third, fourth, and fifth counterclaims, and their demand for punitive damages.
Carl F. Lodes, Carmel, N.Y., for appellants.
Weil, Gotshal Manges, LLP, New York, N.Y. (Mitchell D. Haddad and Christian K. Parker of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER and WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion which were to dismiss the third and fourth counterclaims and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, with costs to the appellants, and the third and fourth counterclaims are reinstated.
The Supreme Court correctly dismissed the defendants' first and second counterclaims, alleging tortious interference with contract and tortious interference with prospective economic advantage, respectively, pursuant to CPLR 3211(a)(5). Those causes of action are barred by the applicable statute of limitations ( see CPLR 214; Spinap Corp. v. Cafagno, 302 A.D.2d 588 ). Contrary to the defendants' contention, CPLR 214-c(4), which applies to personal injury or property damage actions involving exposure to toxic substances, does not apply to this case ( see generally Burger v. Union Carbide Corp., 304 A.D.2d 700, 701, lv denied in part and dismissed in part 100 N.Y.2d 601; Pompa v. Burroughs Wellcome Co., 259 A.D.2d 18; Rothstein v. Tennessee Gas Pipeline Co., 204 A.D.2d 39, 40, affd 87 N.Y.2d 90).
The Supreme Court also properly dismissed the defendants' punitive damages demand ( see Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 616-617).
However, under the circumstances of this case, the Supreme Court erred in dismissing the third and fourth counterclaims, sounding in fraudulent inducement and fraud, respectively, pursuant to, inter alia, CPLR 3016 ( see Kaufman v. Cohen, 307 A.D.2d 113). We reject the plaintiff's additional contention that the defendants' fraud allegations are contradicted by documentary evidence, including alleged admissions by the defendants in pleadings and depositions submitted in a related litigation ( cf. Montefiore v. Soja, 292 A.D.2d 241, 242). We also reject the plaintiff's argument that the Supreme Court's dismissal of the third and fourth counterclaims may be sustained based on the doctrine of judicial estoppel ( see Bono v. Cucinella, 298 A.D.2d 483, 484).
The defendants' remaining contentions are without merit.
FLORIO, J.P., FRIEDMANN, H. MILLER and MASTRO, JJ., concur.