Opinion
2018-02885 Index No. 150177/15
08-05-2020
D. GANGI CONTRACTING CORP., Respondent, v. CITY OF NEW YORK, et al., Appellants.
James E. Johnson, Corporation Counsel, New York, N.Y. (Fay Ng and Eric Lee of counsel), for appellants. De Luca & Forster, Valatie, N.Y. (Thomas G. De Luca of counsel), for respondent.
James E. Johnson, Corporation Counsel, New York, N.Y. (Fay Ng and Eric Lee of counsel), for appellants.
De Luca & Forster, Valatie, N.Y. (Thomas G. De Luca of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated January 11, 2018. The order, insofar as appealed from, upon reargument, adhered to a prior determination in an order of the same court dated June 23, 2017, denying the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order dated January 11, 2018, is reversed insofar as appealed from, on the law, with costs, the determination in the order dated June 23, 2017, denying the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint is vacated, and the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.
The plaintiff commenced this action, inter alia, to recover damages for breach of a construction contract. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated June 23, 2017, the Supreme Court denied the motion. Thereafter, the defendants moved for leave to reargue their prior motion. In an order dated January 11, 2018, the court, upon reargument, adhered to its prior determination denying the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. The defendants appeal from the order dated January 11, 2018.
The Supreme Court, upon reargument, should have granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. The defendants established, prima facie, that this action was not commenced within the limitations period set forth in the contract for breach of contract claims (see Matter of Oriskany Cent. School Dist. [Booth Architects] , 85 N.Y.2d 995, 997, 630 N.Y.S.2d 960, 654 N.E.2d 1208 ; see also Precision Window Sys., Inc. v. EMB Contr. Corp. , 149 A.D.3d 883, 53 N.Y.S.3d 80 ; State of Narrow Fabric, Inc. v. UNIFI, Inc. , 126 A.D.3d 881, 5 N.Y.S.3d 512 ; Hunt v. Raymour & Flanigan , 105 A.D.3d 1005, 963 N.Y.S.2d 722 ; Jamaica Hosp. Med. Ctr. v. Carrier Corp. , 5 A.D.3d 442, 772 N.Y.S.2d 592 ). In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the action was actually commenced within the period propounded by the defendants.
Moreover, to the extent that the complaint seeks recovery in quantum meruit, it should have been dismissed since "the existence of a valid contract governing the subject matter generally precludes recovery in quasi contract for events arising out of the same subject matter" ( EBC I, Inc. v. Goldman, Sachs & Co. , 5 N.Y.3d 11, 23, 799 N.Y.S.2d 170, 832 N.E.2d 26 ; see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co. , 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 ; R & B Design Concepts, Inc. v. Wenger Constr. Co., Inc. , 153 A.D.3d 864, 865, 60 N.Y.S.3d 364 ).
MASTRO, J.P., LEVENTHAL, ROMAN and CHRISTOPHER, JJ., concur.