J & E Indus. of Ossining, Inc. v City of Peekskill
Annotate this CaseDecided on September 11, 2015
Supreme Court, Westchester County
J & E Industries of Ossining, Inc., Plaintiff,
against
City of Peekskill and Peekskill Housing Authority, Defendants.
70193/2014
David O Wright, Esq.
(Attorney for plaintiff)
1012 Park Street
Peekskill, New York 10566
Sokoloff Stern, LLP
(Attorney for defendants)
Carle Place, NY
(Adam Kleinberg and Kevin Levine of counsel)
William J. Giacomo, J.
The following papers numbered 1 to 11 were read on defendant Peekskill Housing Authority's ("PHA") motion to dismiss the complaint and plaintiff's cross motion for sanctions.
PAPERS NUMBERED
Notice of Motion/Affidavit/Exhibits/Memo of Law1-4
Notice of Cross Motion/Affidavits/Exhibits/Memo of Law5-8
PHA's Affirmation in Further Support/Exhibits9-10
Plaintiff's Affirmation in Further Support11
[*2]Factual and Procedural Background
In 2007, plaintiff performed work for defendants at the Dunbar Heights housing complex. On October 1, 2007 it sent a bill to defendants in the amount of $207,000 for services provided.
On September 17, 2013, plaintiff commenced an action (Action No.1) under index no. 64274/2013 by filing a summons with notice with the Westchester County Clerk to preserve the 6-year breach of contract statute of limitations. On September 27, 2013 plaintiff filed a notice of claim with PHA. On November 6, 2013, plaintiff served PHA with the Summons with Notice.
By decision and order dated May 21, 2014, this Court granted PHA's motion to dismiss the complaint on the ground that pursuant to NY Public Housing Law § 157(1), plaintiff was required to file a notice of claim with PHA 30 days before commencing a law suit. Therefore, the Court held that plaintiff did not satisfy the condition precedent to the commencement of Action #1 with respect to PHA.
On November 21, 2014, plaintiff commenced this action (Action #2) making identical allegations to those in Action #1.
On January 26, 2015, PHA moved to dismiss Action #2 and plaintiff cross moved for the imposition of sanctions.
On May 6, 2015, the Appellate Division Second Department affirmed this Court's May 21, 2014 decision and order in J & E Industries of Ossining, Inc. v. Peekskill Housing Authority, 128 AD3d 638 [2015]).
In light of the Appellate Division's decision in Action #1, this Court requested additional submissions from the parties regarding their motions in Action #2.
PHA now moves to dismiss the complaint on the ground that the Appellate Division's affirmance of the dismissal of Action #1 is res judicata and precludes plaintiff from commencing Action #2. Further, Action #2 is time barred because the summons and complaint filed in this action was filed 6 years after the breach of contract action accrued on October 1, 2007.
Plaintiff argues that pursuant to CPLR 205(a) it is entitled to a 6-month tolling of the statute of limitations since the May 6, 2015 decision of the Appellate Division, Second Department was a final termination of the action.
Discussion
CPLR 205(a) provides:
New action by plaintiff. If an action is timely commenced and is terminated in any [*3]other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.
Here, plaintiff claims that since it filed a notice of claim on September 27, 2013 and then commenced Action # 2 on November 21, 2014 it satisfied the condition precedent of NY Public Housing Law § 157(1), and it is entitled to a 6 month tolling of the statute of limitations pursuant to CPLR 205(a). Plaintiff argues that it had six months after the May 6, 2015 Appellate Division decision to recommence its action. Therefore, it's commencement of Action #2, albeit prior to the Appellate Division decision, is timely.
However, in order to get the benefit of CPLR 205(a), Action #1 would have had to have been timely commenced. While the summons and complaint was filed on September 17, 2013, before the expiration of the statute of limitations, the action was not timely commenced because the condition precedent of the filing of the notice of claim pursuant to the NY Public Housing Law § 157(1) was not satisfied. Therefore, contrary to plaintiff's contentions, it does not get the benefit of CPLR 205(a). (see Yonkers Contracting Co. v. Port Authority Trans-Hudson Corp., 93 NY2d 375, 378 [1999]). Moreover, the dismissal of Action #1 was a dismissal on the merits and, thus, plaintiff is not entitled to the 6-month grace period of CPLR 205(a) (see Matter of Westchester Joint Water Works v Assessor of City of Rye, 120 AD3d 1352 [2nd Dept 2014]; cf. Goldstein v. New York State Urban Development Corp., 13 NY3d 511 [2009]).
Accordingly, PHA's motion is GRANTED solely to the extend of dismissing the complaint and the motion is DENIED in all other respects. Plaintiff's cross motion for sanctions is DENIED.
Dated: White Plains, New York
September 11, 2015
HON. WILLIAM J. GIACOMO, J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
