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O'HEARN v. SPENCE-CHAPIN SERVS. TO FAMILIES & CHIL

June 4, 1996

DEBORAH O'HEARN, Plaintiff, against SPENCE-CHAPIN SERVICES TO FAMILIES AND CHILDREN, INC., Defendant.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff Deborah O'Hearn is an adopted child. She alleges that she contacted the defendant Spence-Chapin Services to Families and Children, Inc. ("Spence-Chapin"), an adoption agency, in 1988 when she was 20 years old to attempt to learn the identity of her natural mother. Spence-Chapin provided only non-identifying information. In 1992, the plaintiff hired a private investigation agency which was able to locate her mother, Ann Larkin Esposito. Before the plaintiff could meet Esposito, however, Esposito died.

 The plaintiff alleges that in 1968 Spence-Chapin orally promised Esposito that if Esposito requested the agency to give her name and address to the plaintiff, and if the plaintiff asked for this information after she turned 18, the agency would provide this information to the plaintiff. According to the complaint, in 1977 Esposito asked the agency to give identifying information to the plaintiff if the plaintiff asked for it. The agency allegedly responded by letter that it would do so.

 Relying on diversity of citizenship jurisdiction, the plaintiff brings claims against Spence-Chapin for breach of contract based on the two alleged contracts between Spence-Chapin and her natural mother concerning the release of identifying information to the plaintiff. The plaintiff contends that she is a third-party beneficiary of these contracts. She also brings tort claims for negligent and intentional failure to give information, negligent misrepresentation, intentional or negative infliction of emotional distress, and negligence per se. She also seeks punitive damages.

 The defendant moves to dismiss the plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). Specifically, the defendant argues that (1) one of the contract claims is void under the statute of frauds, and both contract claims are untimely and contrary to the public policy of New York; (2) the tort claims are untimely and fail to state a claim upon which relief can be granted; (3) the punitive damages claim is improperly pleaded as an independent cause of action.

 I.

 The plaintiff's first two causes of action are for breach of contract. The defendant argues that these contract claims are untimely, that the 1968 oral agreement is barred by the statute of frauds, and that both the 1968 and 1977 agreements are barred by the public policy of the State of New York.

 A.

 The plaintiff did not respond in her papers to the defendant's argument that the claim for the alleged breach of the 1968 contract is barred by the statute of frauds. The defense is therefore conceded and the contract claim based on the 1968 contract (First Claim for Relief) must therefore be dismissed. In any event, as a matter of law, the claim is barred by the statute of frauds because the contract could not be performed within one year. See N.Y. Gen. Obl. L. ยง 5-701(a)(1).

 B.

 The defendant also argues that both of the plaintiff's contract claims are untimely. The contract claims accrued in 1988 when the contracts were allegedly breached. See Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.2d 399, 402, 615 N.E.2d 985, 986, 599 N.Y.S.2d 501, 502 (1993) (under New York law, a breach of contract cause of action accrues at the time of the breach even if the damage does not occur until later); see also T & N PLC v. Fred S. James & Co. of New York, Inc., 29 F.3d 57, 59-60 (2d Cir. 1994) (discussing accrual of contract claims under New York law). As the Court of Appeals of New York has explained:

 
"except in cases of fraud where the statute expressly provides otherwise, the statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury. . . . Thus, knowledge of the occurrence of the wrong on the part of the ...

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