Flowers v 73rd Townhouse LLC

Flowers v 73rd Townhouse LLC 2012 NY Slip Op 06635 Decided on October 4, 2012 Appellate Division, First 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 October 4, 2012
Gonzalez, P.J., Saxe, DeGrasse, Freedman, Román, JJ.
8197 651036/10

[*1]J. Christopher Flowers, Plaintiff-Appellant,

v

73rd Townhouse LLC, et al., Defendants-Respondents.




Stroock & Stroock & Lavan, New York (Kevin L. Smith of
counsel), for appellant.
Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J.
Nash of counsel), for respondents.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 27, 2011, which granted defendants' motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.

The documentary evidence submitted on the motion — namely, checks from the Law Offices of Milton S. Rinzler to certain defendants — failed to show conclusively that plaintiff's claims were time-barred. The affidavits submitted by defendants were not "documentary evidence" within the meaning of CPLR 3211(a)(1) (see e.g. Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2d Dept 2010]; Fontanetta v John Doe 1, 73 AD3d 78, 85-86 [2d Dept 2010]), and without the affidavits, it cannot be concluded that defendant 73rd Townhouse LLC made distributions that were protected by the statute of limitations in Limited Liability Company Law § 508(c).

On appeal, defendants argue only the statute of limitations. Accordingly, they have abandoned so much of their motion as was based on CPLR 3211(a)(7).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 4, 2012

CLERK