Hertzberg & Sanchez P.C. v Friendship Dairies Inc.
Decided on February 6, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2004-916 N C.
Hertzberg & Sanchez P.C., Appellant,
Friendship Dairies Inc. F/k/a Friendship Food Products Inc., Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Steven M. Jaeger, J.), entered March 31, 2004. The order granted defendant's motion to dismiss the complaint.
Order modified by providing that defendant's motion to dismiss the complaint is granted to the extent of dismissing the cause of action for an account stated, and complaint reinstated insofar as it alleged a cause of action for breach of contract; as so modified, affirmed without costs.
Plaintiff seeks to recover for expediting and building services which it allegedly performed in order to procure a certificate of occupancy for defendant. A prior action between the parties, based on theories of breach of contract and account stated, was dismissed for plaintiff's failure to respond to interrogatories within the time constraints ordered by the court. The judgment dismissing the first action was unanimously affirmed by this court by order dated November 21, 2003 (Hertzberg & Sanchez v Friendship Dairies, 1 Misc 3d 128[A], 2003 NY Slip Op 51562[U] [App Term, 9th & 10th Jud Dists]).
In the instant action, commenced in December of 2003, plaintiff alleged in its complaint that it had "instituted a prior action for the sums sought herein" and that the actions were "identical." Defendant moved to dismiss on the grounds, inter alia, that the action was barred by res judicata and the statute of limitations. With respect to the latter, defendant claimed that the services for which payment was sought were concluded by March 5, 1997. Plaintiff opposed the motion, claiming that because the order dismissing the first action did not state that it was on the merits or "with prejudice," plaintiff was not barred by res judicata or collateral estoppel from maintaining a second identical action, and that the statute of limitations had not expired because [*2]it had performed work between March and October of 1998. While noting that the action was not dismissible on res judicata grounds, the court below granted defendant's motion to dismiss the action on the ground that it was barred by the statute of limitations.
When a defendant moves to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations, the defendant bears the initial burden of establishing such ground by prima facie proof that the time in which to sue has expired (see Savarese v Shatz, 273 AD2d 219 ; Doyon v Bascom, 38 AD2d 645 ). In order to make a prima facie showing, the defendant must establish, inter alia, when the cause of action accrued (see Swift v New York Med. Coll., 25 AD3d 686 ).
Although inartfully worded, the complaint herein alleged causes of action based on breach of a service contract and on an account stated. Both of said causes of action are governed by a six-year statute of limitations (CPLR 213 ). Accordingly, in order to be timely, the instant action had to be commenced within six years of the time the cause of action accrued (id.). To the extent that the complaint asserted a cause of action based on an account stated, accrual of such cause of action is measured from the date that the balance was struck (see 1 NY Jur 2d, Accounts and Accounting § 26). "[W]here an account becomes an account stated by reason of its being forwarded and received and retained after examination . . . the cause of action upon that account stated thereupon accrues and the Statute of Limitations commences to run" (Slayback v Alexander, 179 App Div 696 ). Accordingly, pursuant to CPLR 213 (2), plaintiff had to have commenced the action within six years after it began mailing the statements of account (see Stewart v Stuart, 262 AD2d 396 ). The rendering of bills after said date did not recommence the running of the statute (see Gaier v Iveli, 287 AD2d 375 ; Stewart v Stuart, 262 AD2d at 397 ). The cause of action for an account stated was based upon plaintiff's invoice of March 5, 1997, which plaintiff, in its response to defendant's interrogatories, admittedly mailed to defendant on that date. Since the action was not commenced until more than six years from said date, that cause of action was properly dismissed as time-barred.Since an account stated is an agreement independent of the underlying agreement (see Duane Reade v Cardinal Health, Inc., 21 AD3d 269 ), insofar as plaintiff alleged a cause of action for breach of the underlying service contract, defendant failed to meet its burden of establishing when that cause of action accrued. Where a claim is for payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff "possesses a legal right to demand payment" (Swift v New York Med. Coll., 25 AD3d at 687). Defendant's contention that the cause of action accrued in March of 1997 is based on the fact that plaintiff billed defendant in March of 1997 for services rendered in the sum of $10,660. However, in the absence of a showing of the terms of the contract between the parties, plaintiff's billing does not necessarily establish that the cause of action had accrued at that time. Thus, defendant failed to show that plaintiff's legal right to demand payment commenced more than six years before the instant action was instituted. Accordingly, defendant failed to establish prima facie that the instant action based on breach of contract is time-barred, and the court below erred in granting its motion to dismiss the action on this basis.
In making this determination, we express no opinion as to the merits of such a defense, but merely find that at this juncture, on defendant's pre-answer motion to dismiss, defendant has failed to meet its burden of establishing when the cause of action for breach of contract accrued (see generally Justin Elec. v Board of Educ. of Shenendohowa Cent. School Dist., 221 AD2d [*3]836 ).
We note that defendant has failed to raise any issue on appeal with respect to the denial of its motion to dismiss insofar as it was predicated on res judicata grounds.
Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: February 6, 2007