New York Supreme and/or Appellate Courts Appellate Division, First Department
October 4, 2012
J. CHRISTOPHER FLOWERS, PLAINTIFF-APPELLANT,
73RD TOWNHOUSE LLC, ET AL., DEFENDANTS-RESPONDENTS.
Flowers v 73rd Townhouse LLC
Decided on October 4, 2012
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.
Gonzalez, P.J., Saxe, DeGrasse, Freedman, Roman, JJ.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 27, 2011, which granted defendants' motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.
The documentary evidence submitted on the motion -- namely, checks from the Law Offices of Milton S. Rinzler to certain defendants -- failed to show conclusively that plaintiff's claims were time-barred. The affidavits submitted by defendants were not "documentary evidence" within the meaning of CPLR 3211(a)(1) (see e.g. Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2d Dept 2010]; Fontanetta v John Doe 1, 73 AD3d 78, 85-86 [2d Dept 2010]), and without the affidavits, it cannot be concluded that defendant 73rd Townhouse LLC made distributions that were protected by the statute of limitations in Limited Liability Company Law § 508(c).
On appeal, defendants argue only the statute of limitations. Accordingly, they have abandoned so much of their motion as was based on CPLR 3211(a)(7).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 4, 2012
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