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166 Archer Ave. Co., LLC v. New York City Health and Hospitals Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 26, 2009

166 ARCHER AVE. CO., LLC, PLAINTIFF-APPELLANT,
v.
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Herman Cahn, J.), entered March 19, 2008, which granted defendant's motion for partial summary judgment dismissing the cause of action for breach of contract as untimely, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Catterson, McGuire, Moskowitz, Acosta, JJ.

602065/07

Since plaintiff's claim for construction costs accrued no later than 1994, this action commenced in 2007 was untimely (CPLR 213 [2]). Plaintiff's contention - that lease provisions conditioning plaintiff's right to payment upon substantial completion and acceptance of the work and providing that defendant "may audit" plaintiff's records to determine the reasonable amount of costs should be construed as requiring completion of an audit as a condition precedent to payment - is unsupported (see Grace Indus., Inc. v New York City Dept. of Transp., 22 AD3d 262, 263 [2005], lv denied 6 NY3d 703 [2006]; see generally Oppenheimer & Co., Inc. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 691 [1995]) and cannot serve to toll the statute of limitations here. Nor is such condition imposed by the September 1997 letter from defendant's counsel, in light of both its language and the lease's merger clause. In view of the foregoing, plaintiff's claimed need for discovery provided no basis to forestall summary judgment.

We have considered plaintiff's remaining contention regarding the constructive rejection of its claim and find it unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090226

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