NIAGARA RECYCLING INC v. SEVENSON ENVIRONMENTAL SERVICES INC (1999)

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

NIAGARA RECYCLING, INC., Plaintiff-Appellant, v. SEVENSON ENVIRONMENTAL SERVICES, INC., f/k/a Sevenson Construction Co., Inc., a/k/a Sevenson Construction Corp., Inc., Defendant-Respondent.

Decided: October 01, 1999

PRESENT: PINE, J.P., WISNER, HURLBUTT, SCUDDER and CALLAHAN, JJ.

Robert E. Knoer, Buffalo, for Plaintiff-Appellant. Patrick J. Berrigan, Niagara Falls, for Defendant-Respondent.

Plaintiff commenced this action for breach of a contract in 1997 based upon defendant's alleged failure to replace 27,000 cubic feet of clay “on or before July 15, 1988”. Supreme Court properly dismissed the action as time-barred (see, CPLR 213[2] ). Plaintiff's reliance upon CPLR 206(a)(2) is misplaced. That section is not applicable because the time for performance was fixed by contract; nor does plaintiff contend that any subsequent action by defendant extended or reaffirmed defendant's contractual obligation.

Judgment and order unanimously affirmed without costs.

MEMORANDUM:

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