In Video Corp. of America v. Flatto Associates, 58 N.Y.2d 1026, 462 N.Y.S.2d 439, 448 N.E.2d 1350 (1983), the New York Court of Appeals held that notwithstanding the absence of a formal or written contract between the parties, the six year statute of limitations applied "insofar as [the action] seeks recovery for damages to property or pecuniary interests."Summary of this case from Cohen v. Goodfriend
Argued February 17, 1983
Decided March 23, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ANDREW R. TYLER, J.
Andrew C. Jacobson for appellant-respondent.
Andrew R. Simmonds and Robert E. Meshel for respondent-appellant.
The order of the Appellate Division should be modified to deny the motion to dismiss the complaint and to reinstate the complaint in its entirety and, as so modified, should be affirmed, with costs to plaintiff.
Justice SANDLER'S analysis ( 85 A.D.2d 448, 457) of our holding in Sears, Roebuck Co. v Enco Assoc. ( 43 N.Y.2d 389; see, also, Steiner v Wenning, 43 N.Y.2d 831; Matter of Paver Wildfoerster [ Catholic High School Assn.], 38 N.Y.2d 669) is correct: an action for failure to exercise due care in the performance of a contract insofar as it seeks recovery for damages to property or pecuniary interests recoverable in a contract action is governed by the six-year contract Statute of Limitations (CPLR 213, subd 2). To the extent that Gilbert Props. v Millstein ( 33 N.Y.2d 857) and Adler Topal v Exclusive Envelope Corp. ( 84 A.D.2d 365) are to the contrary they should not be followed.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur.
Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to plaintiff. Question certified answered in the negative.