Weber v IGC of NY Corp.

[*1] Weber v IGC of NY Corp. 2015 NY Slip Op 51780(U) Decided on December 2, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2013-2324 K C

Mayer Weber, Appellant,

against

IGC of New York Corp. and HOWARD SCHUSTER, Respondents.

Consolidated appeal from orders of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered February 28, 2013 and August 20, 2013. The order entered February 28, 2013 denied plaintiff's motion for leave to enter a default judgment and granted defendants' motion to dismiss the complaint. The order entered August 20, 2013, insofar as appealed from, denied the branch of plaintiff's motion seeking leave to renew his opposition to defendants' motion to dismiss the complaint and, upon, in effect, reargument, adhered to the prior determination.

ORDERED that the appeal from the order entered February 28, 2013 is dismissed, as that order was superseded by the order entered August 20, 2013, made upon reargument; and it is further,

ORDERED that the order entered August 20, 2013, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this breach of contract action in December 2011 to recover $20,000, alleging that defendants had failed to repay the money he had loaned them as an investment in a company. After answering, defendants moved to dismiss the complaint on the ground that plaintiff's claims are time-barred. Plaintiff separately moved for leave to enter a default judgment against defendants based on their failure to appear for depositions or answer plaintiff's notice to admit.

By order entered February 28, 2013, the Civil Court granted defendants' motion and denied plaintiff's motion, determining that, pursuant to CPLR 213, the statute of limitations had expired at the time plaintiff had commenced this action. Plaintiff appeals from the February 28, 2013 order as well as from so much of an order entered August 20, 2013 as denied renewal and as, upon, in effect, reargument, adhered to the prior determination.

Since the order entered February 28, 2013 was superseded by the order entered August 20, 2013, the appeal from the former order must be dismissed.

CPLR 213 (2) provides a six-year statute of limitations where a plaintiff's action is based upon a contractual obligation or liability, express or implied. Here, the record indicates three separate loan agreements between the parties: a promissory note dated December 15, 2001, with a repayment date of January 22, 2002; a financing agreement dated December 19, 2003, with a repayment date of June 15, 2004; and a second promissory note dated June 29, 2004, with a repayment date of September 30, 2004. Thus, the latest defendants were required to repay plaintiff on any of the loans in question was September 30, 2004. Therefore, when plaintiff [*2]commenced this action over six years later, in December of 2011, it was time-barred. Consequently, upon reargument, the court properly adhered to its prior determination granting defendants' motion to dismiss the complaint.

We note that in support of the branch of his motion seeking leave to renew, plaintiff was required to proffer either new facts which were unavailable at the time of the prior motion or a reasonable justification for his failure to have presented such facts on the prior motion (CPLR 2221 [e]; see Deutsche Bank Natl. Trust Co. v Matheson, 77 AD3d 883 [2010]). Plaintiff failed to do either. Under these circumstances, the Civil Court did not improvidently exercise its discretion in denying the branch of plaintiff's motion seeking leave to renew.

Accordingly, the order entered August 20, 2013, insofar as appealed from, is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: December 02, 2015