Opinion
2021-50936
10-05-2021
Srinivasan Venkateswaran, Plaintiff-Respondent, v. Frederick J. Wilmers, and Jonie Fu Wilmers, Defendants-Appellants.
Unpublished Opinion
Defendants appeal from so much of an order of the Civil Court of the City of New York, New York County (Carol R. Sharpe, J.), dated August 31, 2020, which denied their motion to dismiss the complaint as time-barred.
PRESENT: Edmead, P.J., Brigantti, Hagler, JJ.
PER CURIAM
Order (Carol R. Sharpe, J.), dated August 31, 2020, reversed, with $10 costs, motion granted and complaint dismissed.
In 2011, plaintiff contracted to purchase defendants' cooperative apartment. Paragraph 4.1.6 of the contract of sale stated that the "[s]eller[s] ha[ve] not made any material alterations or additions to the Unit... without compliance with all applicable law." In 2018, the cooperative board discovered that defendants were issued a permit for plumbing work in the apartment in 1992, that the permit was still "open," and required plaintiff, as current owner, to correct the condition. In 2019, plaintiff commenced the instant action alleging, inter alia, that the misrepresentations made in Paragraph 4.1.6 of the contract fraudulently induced him to purchase the unit.
In determining the applicable statute of limitations, the reality and essence of a cause of action, rather than what its proponent has named it governs (see Brick v Cohn-Hall Marx Co., 276 NY 259 [1937]; Spinale v Tenzer Greenblatt, 309 A.D.2d 632 [2003]). The basis of this action is the contract of sale. The fraud alleged by plaintiff is based solely on "representations made in the [contract]" (Varo, Inc. v Alvis PLC, 261 A.D.2d 262, 265 [1999] , lv denied 95 N.Y.2d 767 [2000]; see Iken v Bohemian Brethren Presbyt. Church, 162 A.D.3d 594 [2018]), and plaintiff alleges no misrepresentations collateral or extraneous to the contract (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 N.Y.2d 382, 389 [1987]; RGH Liquidating Trust v Deloitte & Touche LLP, 47 A.D.3d 516, 517 [2008], lv dismissed 11 N.Y.3d 804 [2008]; Duane Thomas LLC v 62 Thomas Partners, 300 A.D.2d 52 [2002], lv denied 100 N.Y.2d 513 [2003]). Thus, the falsity of the representation in Paragraph 4.1.6 amounted to a breach of the contract (see Brick v Cohn-Hall-Marx Co., 276 NY at 264; Miller v Columbia Records, 70 A.D.2d 517 [1979], appeal dismissed 48 N.Y.2d 629 [1979]). Courts will not apply the fraud statute of limitations "if the fraud allegation is only incidental to the claim asserted; otherwise fraud would be used as a means to litigate stale claims" (Powers Mercantile Corp. v Feinberg, 109 A.D.2d 117, 120 [1985], affd 67 N.Y.2d 981 [1986]). In this case, plaintiff's allegation of fraud "does not change the nature of the action... in our judgment, from an action upon contract to an action upon fraud within the meaning and purpose of this Statute of Limitations" (Brick v Cohn-Hall-Marx Co., 276 NY at 264).
Since a valid contract exists governing the subject matter in dispute, the cause of action for unjust enrichment, indistinguishable from a breach of contract claim, is untenable (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 142 [2009]).