Opinion
May 19, 1986
Appeal from the Supreme Court, Westchester County (Dachenhausen, J.).
Order reversed insofar as appealed from, with costs, that branch of the defendants' motion which was to dismiss the plaintiff's cause of action based on his "pre-62 pension" denied, and matter remitted to the Supreme Court, Westchester County, for further proceedings.
The contract at issue provides for annual pension payments over a period of time. The Statute of Limitations therefore begins to run at the time of the failure to make each payment, and the plaintiff can sue for any payments due within the six years prior to the commencement of the suit (see, Matter of Philippe, 31 Misc.2d 193, affd 19 A.D.2d 587, affd 14 N.Y.2d 600; CPLR 213).
The dismissal of a prior action between the parties for failure to prosecute was not a dismissal on the merits and did not bar a second action based on the same facts (see, Lewin v Yedvarb, 61 A.D.2d 1025). Brown, J.P., Weinstein, Niehoff and Spatt, JJ., concur.