NELUX HOLDINGS INTERNATIONAL v. DWECK (2018)

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered March 21, 2017, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

This action to recover on a loan was commenced in July 2015.

Defendant borrower established prima facie through the loan agreement and the notes that the loan was due to be paid by May 10, 2004, and that the six-year statute of limitations for a breach of contract claim expired on May 10, 2010.  In opposition, plaintiff lender raised an issue of fact as to whether the statute of limitations was extended by “a new or continuing contract” pursuant to General Obligations Law § 17–101 (see State of N.Y. Workers' Compensation Bd. v. Wang, 147 A.D.3d 104, 110, 46 N.Y.S.3d 230 [3d Dept. 2017];  see also TIAA Global Invs., LLC v. One Astoria Sq. LLC, 127 A.D.3d 75, 97, 7 N.Y.S.3d 1 [1st Dept. 2015] ).  Plaintiff submitted emails that it had received in 2009 from a law firm seeking to discuss repayment of defendant's loan.  This Court and other Departments of the Appellate Division have recognized that a written acknowledgment of a debt signed by the agent of the party to be charged may be sufficient to invoke the statute (see Hakim v. Hakim, 99 A.D.3d 498, 953 N.Y.S.2d 1 [1st Dept. 2012];  Chase Manhattan Bank v. Polimeni, 258 A.D.2d 361, 685 N.Y.S.2d 226 [1st Dept. 1999], lv dismissed 93 N.Y.2d 952, 694 N.Y.S.2d 343, 716 N.E.2d 178 [1999];  see also Sullivan v. Troser Mgt., Inc., 15 A.D.3d 1011, 1012, 791 N.Y.S.2d 231 [4th Dept. 2005];  Park Assoc. v. Crescent Park Assoc., 159 A.D.2d 460, 552 N.Y.S.2d 314 [2d Dept. 1990] ).  An issue of fact arises from the conflicting evidence in the record as to whether the law firm was acting as defendant's agent when it sent the emails to plaintiff.