John S. Pugni, appellant,
Peter Giannini, et al., respondents. Index No. 56737/16
Submitted - April 2, 2018
Reisman Rubeo & McClure, LLP, Hawthorne, NY (Christopher
W. McClure of counsel), for appellant.
Greenspan & Greenspan, White Plains, NY (Michael E.
Greenspan ofcounsel), for respondents.
C. BALKIN, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX LINDA
DECISION & ORDER
action to recover damages for breach of contract, the
plaintiff appeals from an order of the Supreme Court,
Westchester County (Lawrence H. Ecker, J.), dated December 6,
2016. The order granted the defendants' motion pursuant
to CPLR 3211(a)(5) and (7) to dismiss the complaint.
that the order is affirmed, with costs.
February 2007, the plaintiff loaned the sum of $100, 000 to
the defendants, PB&L Investors, LLC (hereinafter the
LLC), and its sole member, Peter Giannini. On May 23, 2007,
the plaintiff loaned an additional $10, 000 to the LLC. There
was no promissory note evidencing these loans.
2016, the plaintiff commenced this action to recover damages
for breach of contract to recover the proceeds of the loans.
The first cause of action sought to recover the proceeds of
the $10, 000 loan. The second cause of action sought to
recover the proceeds of the $100, 000 loan. The plaintiff
also asserted a third cause of action sounding in fraud,
claiming that the defendants falsely represented that the
$100, 000 loan was a short-term loan with a maximum term of
defendants moved pursuant to CPLR 3211(a)(5) and (7) to
dismiss the complaint on the grounds that the entire action
was time-barred by the six-year statute of limitations, and
the third cause of action, sounding in fraud, was duplicative
of the second cause of action.
opposition, the plaintiff claimed that Giannini, on numerous
occasions, orally assured the plaintiff that he would be
repaid, until June 2011, when Giannini claimed the LLC was
bankrupt. The plaintiff produced various emails which, he
claimed, constituted an acknowledgment by Giannini of the
debt pursuant to General Obligations law § 17-101.
Supreme Court, in the order appealed from, granted the
defendants' motion to dismiss the complaint, finding that
the first two causes of action were time-barred, and the
third cause of action, sounding in fraud, was duplicative of
the second cause of action.
motion pursuant to CPLR 3211(a)(5) to dismiss a cause of
action as time-barred, the defendant bears the initial burden
of demonstrating, prima facie, that the time within which to
commence the action has expired, and if the defendant
satisfies that burden, the burden shifts to the plaintiff to
raise a question of fact as to whether the statute of
limitations was tolled or otherwise inapplicable, or whether
the action was actually commenced within the applicable
statute of limitations (see Stewart v GDC Tower at
Greystone, 138 A.D.3d 729). The plaintiff contends that
there are issues of fact as to whether the statute of
limitations was tolled, because the defendants revived their
obligation to repay the loan pursuant to General Obligations
Law § 17-101, which states: "An acknowledgment or
promise contained in a writing signed by the party to be
charged thereby is the only competent evidence of a new or
continuing contract whereby to take an action out of the
operation of the provisions of limitations of time for
commencing actions under the civil practice law and rules
other than an action for the recovery of real property. This
section does not alter the effect of a payment of principal
or interest.'' In support of this contention, the
plaintiff relies on the defendants' emails.
"writing, in order to constitute an acknowledgment, must
recognize the existing debt and must contain nothing
inconsistent with an intention on the part of the debtor to
pay it" (Lew Morris Demolition Co. v Board of Educ.
of City of N.Y., 4ON.Y.2d 516, 520). Here, the emails in
question did not acknowledge that one or both defendants owed
a pre-existing debt to the ...