Education Resources Inst., Inc. v Czarnik

[*1] Education Resources Inst., Inc. v Czarnik 2005 NYSlipOp 51247(U) Decided on August 5, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 5, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.
570132/04

The Education Resources Institute, Inc., Plaintiff-Respondent,

against

Stephen Czarnik, Defendant-Appellant.

Defendant appeals from an order of the Civil Court, New York County, entered September 15, 2003 (Saliann Scarpulla, J.) which denied his cross motion for summary judgment dismissing the complaint on statute of limitations grounds and granted a motion by plaintiff for summary judgment on the complaint.

PER CURIAM:

Order entered September 15, 2003 (Saliann Scarpulla, J.) reversed, with $10 costs, plaintiff's motion denied, defendant's cross motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The action, commenced in August 2002, arises from the defendant's August 1995 defaults on two promissory notes which were originated by a nonparty entity, signed by defendant and guaranteed by plaintiff. Each note contained an Ohio choice-of-law provision. At issue on appeal is whether the parties' contractual dispute is governed by New York's six-year statute of limitations (see CPLR 213) or instead by the 15-year limitations period specified in Ohio's counterpart statute (see Ohio Rev Code § 2305.06). The Appellate Division, Second [*2]Department recently addressed this precise issue on closely analogous facts in Education Resources Institute v Piazza, 17 AD3d 513 (2005), holding that the contractual choice of law clauses there (and here) involved were not triggered because Ohio's statute of limitations "did not constitute a statute of repose and is not a substantive law for purposes of New York choice-of-law analysis" (at 514) and, therefore, that the action was governed by New York's six-year statute of limitations. Applying the rule set forth in Piazza, as we must (see Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [1984]), we conclude that plaintiff's contractual claims, which accrued more than six years before commencement of the action (see Huber v Nasser, 289 AD2d 199, 200 [2001]), are time-barred.
This constitutes the decision and order of the court.
Decision Date: August 05, 2005