GREENMAN PEDERSEN INC v. LEVINE (2007)

Supreme Court, Appellate Division, First Department, New York.

GREENMAN-PEDERSEN, INC., Plaintiff-Appellant, v. Michael LEVINE, Defendant-Respondent.

Decided: February 13, 2007

TOM, J.P., SULLIVAN, NARDELLI, GONZALEZ, MALONE, JJ.

Twomey, Latham, Shea, Kelley, Dubin, Reale & Quartararo, LLP, Riverhead (John F. Shea of counsel), for appellant. Kornfeld & Associates, P.C., New York (Randy M. Kornfeld of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered November 14, 2005, which granted defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint and denied plaintiff's oral application to amend the complaint, unanimously affirmed, with costs.

The Stock Purchase Agreement contained a clause limiting to three years the time within which either party could bring an action for breach of contract. The Agreement was signed on October 1, 2001 and went into effect eight days later. However, the instant action was not commenced until June 17, 2005, well after expiration of the agreed-upon period of limitation. Plaintiff has failed to show that any of its claims fall into any of the contractual exceptions for tolling the limitation period.

The court properly dismissed the claims for fraudulent concealment and negligent misrepresentation as duplicative of the claims for breach of contract and warranty. Plaintiff failed to allege the breach of any duty separate and apart from the contractual obligations (Rivas v. Amerimed USA, Inc., 34 A.D.3d 250, 824 N.Y.S.2d 41 [2006] ).

We have reviewed plaintiff's other contentions and find them without merit.

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