Johnson v Broder

Johnson v Broder 2013 NY Slip Op 08411 Decided on December 18, 2013 Appellate Division, Second Department 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.

Decided on December 18, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
ROBERT J. MILLER, JJ.
2012-08966
(Index No. 11149/11)

[*1]Steve Johnson, appellant,

v

Paul G. Broder, respondent, et al., defendant.




Reilly & Reilly, LLP, Mineola, N.Y. (John J. Reilly and David T.
Reilly of counsel), for appellant.
Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP,
Riverhead, N.Y. (Kathryn Dalli and
Barbara Hall of counsel), for
respondent.


DECISION & ORDER

In an action to reform a deed, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Farneti, J.), dated July 12, 2012, as granted that branch of the motion of the defendant Paul G. Broder which was for summary judgment dismissing, as time-barred, so much of the complaint insofar as asserted against him as was predicated upon an alleged mutual mistake.

ORDERED that the order is affirmed insofar as appealed from, with costs.

"A cause of action seeking reformation of an instrument on the ground of mistake is governed by the six-year statute of limitations pursuant to CPLR 213(6), which begins to run on the date the mistake was made" (Taintor v Taintor, 50 AD3d 887, 888). In this case, the defendant Paul G. Broder established his prima facie entitlement to judgment as a matter of law dismissing, as time-barred, so much of the complaint insofar as asserted against him as was predicated upon an alleged mutual mistake by submitting evidence that the alleged mistake occurred in 1979 and the plaintiff did not commence this action until 2011 (see id. at 889). In opposition, the plaintiff failed to raise a triable issue of fact (cf. Hart v Blabey, 287 NY 257, 262-263).

The plaintiff, in his notice of appeal, limited the scope of his appeal to so much of the order as granted that branch of Broder's motion which was for summary judgment dismissing, as time-barred, so much of the complaint insofar as asserted against him as was predicated upon an alleged mutual mistake. Thus, the plaintiff's contention on appeal that the Supreme Court improperly denied his cross motion is not properly before this Court (see CPLR 5515[1]; Hatem v Hatem, 83 AD3d 663).
RIVERA, J.P., HALL, ROMAN and MILLER, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court