Opinion
April 24, 1990
Appeal from the Supreme Court, New York County (Ethel Danzig, J., Beverly Cohen, J.).
In the underlying action, plaintiff Bayridge Air Rights, Inc., a limited-profit housing corporation, sought to recover from defendant Blitman, as contractor, and its surety, defendant Traveler's Indemnity Co., monetary damages for the allegedly defective construction of a 611-unit high-rise housing complex located in the Bay Ridge section of Brooklyn.
Contrary to plaintiff's assertions, plaintiff's cause of action for breach of contract, brought in April 1981, was time barred by the six-year Statute of Limitations set forth in CPLR 213 since plaintiff's cause of action against the defendants for construction defects accrued upon substantial completion of construction when the owner took occupancy of the building in April of 1972. (Cabrini Med. Center v. Desina, 64 N.Y.2d 1059; State of New York v. Lundin, 60 N.Y.2d 987.)
Similarly, plaintiff's written agreement with defendant Blitman, wherein the plaintiff purported to postpone the accrual of the Statute of Limitations period to some indefinite date in the future, did not conform with General Obligations Law § 17-103, governing agreements to extend, waive or not plead the Statute of Limitations, thereby rendering the parties' agreement void and unenforceable (Kassner Co. v. City of New York, 46 N.Y.2d 544; Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427).
Equally devoid of merit is plaintiff's claim that the defendants were equitably estopped from asserting the Statute of Limitations as a defense since plaintiff failed to allege that defendant Blitman made false representations or conducted itself in such a manner as to mislead the plaintiff into believing that the time limitation would not be invoked. (State of N.Y. Higher Educ. Servs. Corp. v. Zamore, 59 N.Y.2d 933; Matter of Carr, 99 A.D.2d 390; Rosenthal v. Reliance Ins. Co., 25 A.D.2d 860, affd 19 N.Y.2d 712.)
Finally, plaintiff failed to demonstrate its entitlement to renewal by not demonstrating that material new facts were being presented to the court for the first time and a justifiable excuse for its failure to present the new evidence at the time of the original application, or that the court has misapprehended relevant facts or misapplied controlling principles of law. (Matter of Kadish v. Colombo, 121 A.D.2d 722; Foley v. Roche, 68 A.D.2d 558.)
Concur — Kupferman, J.P., Sullivan, Ross, Carro and Kassal, JJ.