Romanski v ackermann

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Romanski v ackermann 2012 NY Slip Op 32203(U) August 16, 2012 Sup Ct, Suffolk County Docket Number: 24220-08 Judge: Thomas F. Whelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FOllM ORDER INDEX No. 24220-08 SUPREME COURT - STA TE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE: 2/281I2 (#005) MOTION DATE: 41271I2 (#006) MOTION DATE: 7127/12 (#008) i\DJ. DATES 71271I2 Mot. Seq. # 005 - MD Mot. Seq. # 006 - MD Mot. Seq. # 008 - XMD Compliance Con£: 9/18/12 CD I SP Y __ N -..X...- ---------------------------------------------------------------X THOMi\S ROMANSKI, individually and d/b/a ROMi\NSKJ IRRIGATION, Plaintiff, -againstWILLIi\M ACKERMANN and THERESA ACKERMANN, Defendants. JONATHAN BROWN, ESQ. Atty. For Plaintiff 737 Roanoke Ave. Riverhead, NY 11901 REYNOLDS, CARONIA, GIANELLI Attys. For Defendant Wm. Ackermann 35 Arkay Dr. Hauppauge, NY I 1788 BLi\NGIARDO & BLANGIARDO Any. For Defendant Theresa Ackermann PO Box 1169 Cutchogue, NY 11935 ---------------------------------------------------------------X Upon the following papers numbered I to 2] read on these motions for summarY judgment; Notices of Motion/Order to Show Cause and supporting papers 1-4: 5-7 ; Notice of Cross Motion and supporting papers 8-10 __ ; Answering Affidavitsand supporting papers 11-13: 14-15; 16-17 ; Replying Affidavits and supporting papers _ ___ ,.Other 18-19 (affirmation in support); 20-21 (memorandum) ; (IInd IIRel lielll lUg, COI:IIlSei ill SUpp<'H <'Illd 0pp<':'led to the ",<,tioli) it is, ORDERED that this motion (#005) by defendant, Theresa Boyle Ackerman, and the separate motion (#006) by defendant, William Ackerman, for summary judgment dismissing the plaintiff's complaint in this action to recover monies due under the terms of an oral contract by which the plaintifT allegedly provided irrigation services, are considered under CPLR 3212 and are denied; and it is further [* 2] Romanski v Ackerman Index No. 08-24220 Page 2 plaimiJT allegedly provided irrigation services. arc considered under it IS further cpr.R 3212 and are denied; and ORDERED that the cross motion (#008) by the plaintiff Thomas Romanski, lor summary judgment on his complaint to recovery monies due for work, labor and services to the dcfendants. is considered under CPLR 3212 and is denied and it is further ORDERED that upon receipt of a copy of this order. the calendar clerk shall schedule a compliance conference in this action for September 18, 2012. at 9:30 a.l11. in Pan 33, at the courthousc located at 1 Court Street - Annex, Riverhcad. New York. By ordered dated May L 2012, the motions by the defendants (#005 and #006) for summary judgment were granted by order of this court dated May 1, 2012, without opposition from the plaintiff. However. the plaintiff successfully moved (motion #007) to vacate his default in opposing said motions by order dated June 21, 2012. Pursuant thereto. the defendants' motions for summary judgment (#005 and #006) were restored to the motion calendar of the this court for the date of July 27,2012, together wilh the cross motion (#008) by plaintiff. The inslanl breach of contract action, commenced on July 1, 2008, arises out of irrigation services pcrformed by the plaintiff. Thomas Romanski, on a vineyard owned and/or operated by the defendants. The services were performed in accordance with an oral contract which was, according to the plaintin~ entered into by the plaintiiT and defendant, William Ackerman, in January of 2003. A paymcnt of $5,000 was made by said defendant on November 28, 2003 and/or a like payment was made by defendant Theresa Ackerman. The plaintiff further alleges that the defendants, who have long enjoyed the benefits of his work, have failed to pay the $39,945.71 balance owing for this servIce. The defendants, who were married at the time the plaintifrs work was performed, dispute these l~lCtualassertions of the plaintiffs. The defendants claims that the irrigation work performed by the plaintiff was completed in either 2001 or 2002. In an order Issued by this Court on November 10, 2010, defendant William Ackermann was granted summary judgment on the issue of the liability of his co-defendant, Theresa Ackermann, nJkJa Theresa Boyle. Such liability arose from a promise by defendant, There~:>a Ackerman. n/kla Theresa Boyle, to indemnify and hold hanllless defendant. William Ackl..:rman, against the plaintiffs claim under the terms of a writ1cll stipulation of settlement entered into OJl Apnl 28, 2008. in a divorc(.':action then pending belw-ecn the defendants. By the complaint served hercm 'with the summons. the plaintiff sets forth three causes of action for recovery from the defendants. The first sounds in breach of oral comract for the performance of the irrigation services perfonned by the plaintiff to the vineyard land. The second cause of action sounds in an account stated and the third sounds in goods sold and delivered. A copy of an amended complaint containing the same claims is attached to the cross moving papers of the plaintiff. without proof that said amended complaint was scrved in accordance with leave therefor granted by order of the court upon motion or stipulation of counscl (see CPLR 3025(b ) .. [* 3] Romanski v Ackerman Index No. 08-24220 Page 3 The defendants' separate motions for summary judgment rest principally upon claims that the plaintiffs prosecution of his breach of contract claim is barred by the expiration of the applicable statute of limitations. Tn this regard, both defendants note that pursuant to CPLR 213, the six-year limitation applies to causes of actions based on a breach of contract. Neither of the de!Cndants address the plaintiff's claims lor recovery under the alternate theories of liability advanced by the plaintiff in his complaint which sound in an account stated and goods sold and delivered. An award of summary judgment in favor of the defendants dismissing the second and third causes of action is precluded due a lack ol'proofoCthc type required by CPLR 32l2(b). With respect to the plaintiff's claim for recovery under the breach of contract claim, the defendants are correct in their assertions that a six year statute of limitations applies to claims for recovery or monies due under a contract (see CPLR 213). However, they railed to establish that the statute has run on the plaintiff's claims for recovery of monies due under the alleged oral contract upon which the plaintiffs first cause of action rests. Under CPLR 213(2), a claim for breach of contract is governed by a six-year statute of limitations. As a general principlc, the statute of limitations begins to run when a cause of action accrues (see CPLR 203I'a]), that is, "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court'· (Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 501 NYS2d 313 [1986]). In contract actions. a claim generally accrues at the time ofthe breach (see Ely-Cruikshallk Co. 11 Bank of Montreal, 81 NY2d 399, 599 NYS2d 501 [1993"]). Appellate case authorities have more recently held, however, that where the claim is for payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the [party making thc claimJ possesses a legal right to demand payment (see Halm Auto. Ware/lOuse, 1m.:. 11 American Zurich Ins. Co., 18 NY3d 765, 944 NYS2d 742 [2012.1; Minskoff Grant Realty & Mgt. Corp. v 2Jl Mgr. Corp., 71 AD3d 843, 897 NYS2d 485 [2d Dept 2010J; 771 KilO v Wall St. Mtge. Ballkers, Ltd., 65 AD3d 1089,885 NYS2d 520 [2d Dept 20091). The burden of establishing an entitlement to a dismissal of a complaint based upon a statute of limitations defense rests upon the movant and the satisfaction of such burden, requires a prima facie showing that the time within which to commence the action has expired (see Baptiste 11 Harding-Marin. 88 J\D3d 752. 930 NYS2d 670 r2d Dept 2011]). Where such a showing is made. the burden then shills to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or !s otherwise inapplicable (see Rakusill JI Miallo. 84 AD3d 1051,923 NYS2d 334 [2d Dept 20111: Texeria l' BAB Nue/ear Radiology, Pc. 43 J\03d 403, 405. 840 NYS2d 417 [2d Oept lOO?}). Here. the record is replete with questions of fact regarding the alleged date all which the breach of contract and the plaintitrs entitlement to monics due arose. Defendant, William Ackcrmann, argues in his moving papers that the work called for under the contract \vas completed in the spring 01'2001. However. plaintiff. Thomas Romanski. alleges that work continucd on the project as late as autumn of 2003 and that the last payment received by plaintiff for the services provided by such defendant was on November 28. 2003. Neither of the defendants adduced proof in admissible form sufiicient to eliminate these questions of fact. [* 4] Romanski \' Ackerman Index No. 08-24220 Page 4 In any event, the plaintiff whose opposition to the defendants' motions is set forth in his cross moving papers. has raised questions of fact regarding the inapplicability of the statute of limitations defenses asserted by the defendants. Appellate case authorities have long instructed trial courts that an applicable statute of limitations may be inapplicable due to a tolling or the statutory limitations period. In Erdlleim v Gelfmall. 303 AD2d 714, 757 NYS2d 320 (2d Dept 2003). the Appellate Division, Second Department stated the rule as follows: There arc two ways in which the statute of limitations may be tolled. One involves part payment of the debt and the other a signed acknowledgment. As to part payment the statute wiIl be tolled irthe creditor demonstrates that it was "payment ofa portion or an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor or more being due. rrom which a promise may be inferred to pay the remainder" (Lew Morris Demolition Co. v Board of Edllc. of City of NY. 40 NY2d 516, 521. 387 NYS2d 409, 355 NE2d 369). As to a written acknowledgment, pursuant to General Obligations Law § 17-101, the statute of !tmitations wili be tolled by a signed written acknowledgment of an existing debt which contains nothing inconsistent with an intention on the part of the debtor to pay (id). To be ellectivc under General Obligations Law ~ 17-101, a written acknowledgment of the debt must not only admit liability for a debt presently due, but it mllst be directed to the creditor and/or shown to have been made with the intent to benefit the debtor or influence the creditor (see LY'~ford I' Williams. 34 AD3d 761, 826 NYS2d 335 l:Zd Dept 20061; Essex Real Estate Corp. v Piluso, 68 AD2d 923, 414 NYS2d 377 [1'1 Oept 1979']). "In determining the effectiveness of an acknowledgment, the critical determination is whether the acknowledgment imports an intention to pay" (K1101l11 Dutek Sec. Corp., 2:AD3d 594, 769 NYS2d 58] [2e1 Oept 2003]). Here. the record contains some evidence of payments made by the defendants on account of work performed by the plaintiff in late 2003. Such payments may have tolled an otherwIse earlier start to the limitations period imposed by CPLR 213 on the plaintiff's breach of contract claims thus rendering such claims timely. Morever. the written acknowledgmcnt of the debt by both defend,mts set lorth in their stipulation of settlement entered into April of 2008. may have effectively renewed the debt so as to restart any prior accrual of the six years limitations period by virtue of the application of GOL ~ 17 -101. The court rejects as unmeritorious the contentions of defcndant, William I\ckcnnan. as to the inapplicability or GOL §J 7-101 due to a failure to apprise the plaintiff of the acknowledgment set f0l1h in the defendants' divorce stipulation of settlement. For the record here contains evidence that Mr. I\ckcnnan advised the plaintiff in 2005 that arrangements for the payment of amounts owing to him were the subject of ongoing divorce settlement negotiations between the defendants and that they were attempting ..to determine \.\'ho V·iasresponsible lor what"' (see Pl'. 28. 30 of the Transcript of the Deposition testimony of W. Ackerman attached as Exhibit F to his moving papers). The [* 5] Romanski v Ackerman Index No. 08-24220 Page 5 record also contains evidence that such negotiations culminated in the April 28, 2008 written stipulation of settlement in which the debt owing to the plaintifTwas expressly acknowledged by the defendants and sole liability therefor assumed by defendant, Theresa Ackerman n/kJaJ Theresa Boyle (see pp. 31- 32 of the Transcript or the Deposition testimony of W. Ackerman attached as Exhibit F to his moving papers). The inclusion of the debt owing to the plaintiff in the defendant's long negotiated stipulation of settlement, coupled with the express acknowledgment of its existence. clearly evinces that the acknowledgment was made with the intent of benefitting the defendant debtors and/or to inlluence the plaintiff as their creditor (see Ly,,[ord v Williams, 34 AD3d 761, slIpra). Under these circumstances, the motions by the defendants for dismissal of the plaintifTs complaint on the grounds that the statute of limitations precludes the plaintiWs continued prosecution of his claims in this action are denied. Also rejected as unmeritorious are defendant, William Ackermann's alternative grounds for his motion. In his moving papers, defendant, William Ackermann, alleges that any services provided by plaintiff were provided to the parities' limited liability corporation, Manorhill Vineyard, LLC which had some interest in either the land or the vineyard business operated therefrom and not to this moving defendant, individually. However, the moving papers failed to provide admissible proof in support of these claims. Mr. Ackerman's further claims that the amounts sued upon improperly include finance charges give rise only to questions on damages, not to liability. Those portions of the motion by defendant, William Ackermann, for summary judgment dismissing the plaintiff's complaint on the grounds that he is without liability to the plaintiff arc thus denied. Also denied is the plaintiffs cross motion for summary judgment. The plaintiff's submission were devoid of proof in admissible form sufficient to establish a prima facie entitlement to summary judgment on any of the causes of action set forth in his complaint (see CPLR 32l2(b); Ray tOile Plumbillg Specialities, Illc. v SmlO COIlSt., 92 AD3d 855, 939 NYS2d 116 [2d Oept 20]2]; Brlta!di v. IBERIA, 79 AD3d 959, 913 NYS2d 753 [2d Oept 20101). Plaintiff's cross motion is thus denied. Counsel for all parties are directed to appear in the courtroom ofthc undersigned at 9:30 a.lll. on September 18, 2012, for the compliance conference scheduled above by the terms of this order. DATED: jf(' I~k\ (Ii THOM-AS F. WiIELAN. J.Sc.

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