Opinion
October 1, 1999
Appeal from Judgment and Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.
PRESENT: PINE, J.P., WISNER, HURLBUTT, SCUDDER AND CALLAHAN, JJ.
Judgment and order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action for breach of a contract in 1997 based upon defendant's alleged failure to replace 27,000 cubic feet of clay "on or before July 15, 1988". Supreme Court properly dismissed the action as time-barred ( see, CPLR 213). Plaintiff's reliance upon CPLR 206 (a) (2) is misplaced. That section is not applicable because the time for performance was fixed by contract; nor does plaintiff contend that any subsequent action by defendant extended or reaffirmed defendant's contractual obligation.