John Boyce v New York City Health and Hospitals Corporation

Boyce v New York City Health & Hosps. Corp. 2004 NY Slip Op 04277 [8 AD3d 220] June 1, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

John Boyce et al., Appellants,
v
New York City Health and Hospitals Corporation et al., Respondents.

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In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Rosenberg, J.), dated April 15, 2003, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint as time-barred.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was for summary judgment dismissing the complaint as time-barred is denied.

We agree with the plaintiffs that the gravamen of their complaint sounds in contract law and that the Supreme Court improperly characterized their action as a proceeding pursuant to CPLR article 78 (see Abiele Contr. v New York City School Constr. Auth., 91 NY2d 1 [1997]). As such, the action is subject to a six-year statute of limitations (see CPLR 213 [2]). There is an issue of fact as to whether the plaintiffs' causes of action accrued more than six years before commencement of the action. Thus, the Supreme Court should have denied that branch of the motion which was for summary judgment dismissing the complaint as time-barred (see Radon Constr. Corp. v Alcon Constr. Corp., 277 AD2d 368 [2000]). Smith, J.P., H. Miller, S. Miller and Luciano, JJ., concur.