Opinion
16581 654484/13
01-07-2016
JANG HO CHOI, Plaintiff–Appellant, v. BEAUTRI REALTY CORP., Defendant–Respondent.
Cole Schotz P.C., New York (Nolan E. Shanahan of counsel), for appellant. Vishnick McGovern Milizio, LLP, Lake Success (Jordan M. Freundlich of counsel), for respondent.
Cole Schotz P.C., New York (Nolan E. Shanahan of counsel), for appellant.
Vishnick McGovern Milizio, LLP, Lake Success (Jordan M. Freundlich of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 23, 2014, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(5), unanimously affirmed, with costs.
The motion court erred in finding plaintiff's claim barred by the provision of the parties' agreements that required the closing of a real property sale within 90 days of defendant's default or “from the date of the Contract.” A reasonable interpretation of the agreements is that they require closing within 90 days of the contracts of sale becoming effective, i.e., following plaintiff's exercise of his option to purchase the property and the parties' entering into a separate agreement to adjust the price.
Nevertheless, we affirm the dismissal of the action on the ground that it is barred by the statute of limitations on breach of contract actions. More than six years have elapsed since plaintiff exercised his option and defendant refused to comply, in June 2007 (see CPLR 2132; Ely–Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 599 N.Y.S.2d 501, 615 N.E.2d 985 1993 ).
Plaintiff contends that the statute of limitations was “equitably tolled” during the pendency of another New York action concerning another party's right to purchase the same property and of his own action in South Korea. However, the doctrine of equitable tolling is not available in state causes of action in New York (see Ari v. Cohen, 107 A.D.3d 516, 517, 968 N.Y.S.2d 31 1st Dept.2013; Shared Communications Servs. of ESR, Inc. v. Goldman, Sachs & Co., 38 A.D.3d 325, 832 N.Y.S.2d 32 1st Dept.2007 ). In any event, plaintiff did not demonstrate that he was prevented in “some extraordinary way” from timely commencing an action for specific performance (O'Hara v. Bayliner, 89 N.Y.2d 636, 646, 657 N.Y.S.2d 569, 679 N.E.2d 1049 1997, cert. denied 522 U.S. 822, 118 S.Ct. 78, 139 L.Ed.2d 37 1997 ). Plaintiff had sufficient knowledge of the facts and of a basis for a cause of action within the limitations period, and yet he failed to bring a timely suit (see Putter v. North Shore Univ. Hosp., 7 N.Y.3d 548, 554, 825 N.Y.S.2d 435, 858 N.E.2d 1140 2006; see also Pahlad v. Brustman, 8 N.Y.3d 901, 834 N.Y.S.2d 74, 865 N.E.2d 1240 2007 ). Nor does plaintiff contend that defendant wrongfully induced him to refrain from asserting his specific performance claim and therefore should be equitably estopped to rely on the statute of limitations (see Simcuski v. Saeli, 44 N.Y.2d 442, 448–449, 406 N.Y.S.2d 259, 377 N.E.2d 713 1978 ).