Sixth Lenox Terrace Assoc. v Stokke
Annotate this CaseDecided on December 17, 2015
Civil Court of the City of New York, New York County
Sixth Lenox Terrace Associates, Plaintiff,
against
Tony Stokke, Defendant.
CV-8531/15
The Law Office of Kevin Thomas by Kevin Thomas represented defendant.
Maidenbaum & Associates By Jeffrey A. Maidenbaum represented plaintiff.
David B. Cohen, J.
Motion is granted in part and denied in part. On July 18, 2008, the parties entered into a lease that ended on July 31, 2009. On April 9, 2015, plaintiff commenced this action by filing the Summons and Complaint with the clerk of this Court, seeking amounts owed by defendant totaling $13,672.19. The Complaint alleged two causes of action, breach of contract and account [*2]stated. On October 15, 2015, defendant filed the instant motion seeking dismissal of the Complaint based upon Statute of Limitations. In support of the motion, defendant attached the lease and the rent ledger.
The lease demonstrates that the parties entered into an agreement in July 2008 that ran until July 31, 2009. The ledger indicates that plaintiff was current on the rent through November 2008 and stopped paying the rent as of December 1, 2008. Defendant argues that its breach occurred on December 1, 2008 and the six-year Statute of Limitations for a breach of contract ran on December 1, 2014 making this action untimely. In opposition, plaintiff submitted the affidavit of Eddie Tan, the managing agent of plaintiff. Mr. Tan stated that while defendant vacated the apartment in November 2008, the lease ran through July 2009 and as the premises were not re-let, defendant's obligations to plaintiff continued until the end of the lease.
Where, as here, the claim is for payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff "possesses a legal right to demand payment" (Swift v New York Med. Coll., 25 AD3d 686, 687 [2d Dept 2006], see also City of New York v State, 40 NY2d 659 [1976]). The Statute of Limitations is "triggered when the party that was owed money had the right to demand payment, not when it actually made the demand" (Hahn Automotive Warehouse, Inc. v Am. Zurich Ins. Co., 18 NY3d 765, 771 [2012]).
When the contract calls for payments at different times, there are separate causes of action for each installment accrued, and the Statute of Limitations begins to run on the date each payment becomes due and is defaulted upon (Sce v Ach, 56 AD3d 457 [2d Dept 2008]). The Statute of Limitations bars a party from seeking to recover payments on a promissory note, but only for those missed payments that occurred more than six years prior to commencement of the action (Cadlerock, L.L.C. v Renner, 72 AD3d 454 [1st Dept 2010]; CPLR 203(c)). Periodic monthly payments under a lease are akin to contractual installment payments under a promissory note.
Here, defendant was obligated to pay a sum of money to plaintiff on the first day of each month starting in August 2008 and continuing through July 2009. Plaintiff did not possess the right to demand payment until each of those dates occurred and the Statute of Limitations did not trigger for each payment until such date. The last payment made was for November 2008 and the first failure to pay was on December 1, 2008. Prior to the commencement of this suit, more than six years had passed since plaintiff was entitled to demand payment of the rent for December 2008 and January through April 2009. Therefore, the breach of contract claim for those months is dismissed. However, as this action was commenced on April 9, 2015, six years had not passed since plaintiff could demand payment for the months of May 2009 through July 2009, and those months fall within the Statute of Limitations.
Defendant moved to dismiss the Complaint in its entirety. However, defendant did not present any rent bills or legal or factual arguments to the Court relating the dismissal of the account stated cause of action. The Statute of Limitations for account stated is also six years and commences from the time the final services were rendered and billed (Stewart v Stuart, 262 AD2d 396 [2d Dept 1999]). On this record, the Court cannot dismiss this cause of action on Statute of Limitation grounds.
For the above reasons, defendant's motion is granted in part and the breach of contract cause of action relating to the months of December 2008 through April 2009 are dismissed.
This constitutes the decision and order of the Court.
Dated: December 17, 2015
New York, New York
________________________________
Hon. David B. Cohen, J.C.C.
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