Rivera v. Viera

Full title: PETER M. RIVERA, Respondent, v. DAVID VIERA et al., Appellants

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 10, 1998

256 A.D.2d 100 (N.Y. App. Div. 1998)

681 N.Y.S.2d 274

Opinion

December 10, 1998

Appeal from the Supreme Court, New York County (Bertram Katz, J.).

We previously deemed defendant Ramos' counterclaim to sound in conversion and on that basis affirmed its dismissal as time-barred ( 246 A.D.2d 432). Defendant-appellant's present attempt to avoid the statutory bar by refashioning the facts underlying the prior, dismissed counterclaim for conversion, into counterclaims for breach of contract, was properly rejected by the motion court as patently without merit ( see, East Asiatic Co. v. Corash, 34 A.D.2d 432). Nor do we perceive any reason to reconsider our prior, express holding that the counterclaim is for conversion.

Concur — Lerner, P. J., Ellerin, Andrias and Saxe, JJ.