Midwest Goldbuyers, Inc., Plaintiff–Appellant, v. USA (2014)

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

Midwest Goldbuyers, Inc., Plaintiff–Appellant, v. Brink's Global Services USA, Inc., etc., Defendant–Respondent.

1305 2

Decided: September 30, 2014

Mazzarelli, J.P., Andrias, Moskowitz, Manzanet–Daniels, Clark, JJ.

Law Offices of Jordan T. Schiller, New York (Patrick Lucas of counsel), for appellant. Messner Reeves LLP, New York (Jean–Claude Mazzola of counsel), for respondent.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered June 6, 2013, which, granted defendant's motion to dismiss the first two breach of contract claims, and the negligence claim, unanimously affirmed, without costs.

Plaintiff's claims arising from transactions that occurred more than one year before the filing of the instant suit in New York are time-barred under the one-year contractual limitations period. The IAS court correctly held that plaintiff's prior action in Illinois was not a “prior action” for purposes of the six-month toll in CPLR 205(a) (Lehman Bros. v. Hughes Hubbard & Reed, 245 A.D.2d 203, 203 [1st Dept 1997], affd 92 N.Y.2d 1014 [1998] ). Further, the IAS court properly dismissed the claim for negligence as to all transactions, as plaintiff failed to allege any breach of duty independent of the parties' contracts (Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551 [1992] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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