Summary
considering whether UCC § 2–725 was tolled by defendant's partial payment, although concluding plaintiff failed to demonstrate payment constituted acknowledgment of debt
Summary of this case from Alarmax Distributors, Inc. v. New Canaan Alarm Co.Opinion
2005-08759.
September 19, 2006.
In an action to recover damages, inter alia, for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Barone, J.), dated August 22, 2005, which granted the defendant's motion to dismiss the complaint as time-barred and denied his cross motion for leave to amend the caption and the complaint, and to consolidate the action with other actions.
McCarthy Fingar, LLP, White Plains, N.Y. (Robert H. Rosh of counsel), for appellant.
Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Thomas G. Gardiner of counsel), for respondent.
Before: Prudenti, P.J., Adams, Rivera and Lifson, JJ.
Ordered that the order is affirmed, with costs.
Since the plaintiff failed to demonstrate that the 2003 payment in the sum of $1,890.42 was a partial payment constituting an acknowledgment of debt, of which the amount claimed in this action was a part (see Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d 516), the applicable four-year period of limitations ( see UCC 2-725) was not tolled and the Supreme Court properly granted the defendant's motion to dismiss the complaint as time-barred ( see Lew Morris Demolition Co. v Board of Educ. of City of N.Y., supra; Stern v Stern Metals, Inc., 22 AD3d 567).
The plaintiff's remaining contentions either have been rendered academic or are without merit.