Greenman-Pedersen, Inc. v Levine

Greenman-Pedersen, Inc. v Levine 2007 NY Slip Op 01223 [37 AD3d 250] February 13, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

Greenman-Pedersen, Inc., Appellant,
v
Michael Levine, Respondent.

—[*1] Twomey, Latham, Shea, Kelley, Dubin, Reale & Quartararo, LLP, Riverhead (John F. Shea of counsel), for appellant. Kornfeld & Associates, P.C., New York (Randy M. Kornfeld of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered November 14, 2005, which granted defendant's motion pursuant to CPLR 3211 (a) to dismiss the complaint and denied plaintiff's oral application to amend the complaint, unanimously affirmed, with costs.

The stock purchase agreement contained a clause limiting to three years the time within which either party could bring an action for breach of contract. The agreement was signed on October 1, 2001 and went into effect eight days later. However, the instant action was not commenced until June 17, 2005, well after expiration of the agreed-upon period of limitation. Plaintiff has failed to show that any of its claims fall into any of the contractual exceptions for tolling the limitation period.

The court properly dismissed the claims for fraudulent concealment and negligent misrepresentation as duplicative of the claims for breach of contract and warranty. Plaintiff failed to allege the breach of any duty separate and apart from the contractual obligations (Rivas v Amerimed USA, Inc., 34 AD3d 250 [2006]).

We have reviewed plaintiff's other contentions and find them without merit. Concur—Tom, J.P., Sullivan, Nardelli, Gonzalez and Malone, JJ.