SPINELLI v. PROCASSINI (1999)

In an action to recover damages for breach of contract, (1) the defendant appeals from so much of an order of the Supreme Court, Richmond County (J. Leone, J.), dated May 29, 1998, as denied that branch of his cross motion pursuant to CPLR 3211(a)(5) which was to dismiss the complaint as time-barred, or, for summary judgment dismissing the complaint, and (2) the plaintiffs cross-appeal from the same order.

ORDERED that the cross appeal is dismissed, for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8[c], [e] );  and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, that branch of the defendant's cross motion which was for summary judgment dismissing the complaint as time-barred is granted, and the complaint is dismissed;  and it is further,

ORDERED that the defendant is awarded one bill of costs.

 The plaintiffs seek to recover damages for breach of contract arising from the defendant's alleged failure to timely file plans necessary for the approval of a pipeline to be constructed on property formerly owned by the plaintiff Frank Coppotelli.   Accepting Coppotelli's version of the facts as true and according it every favorable inference (see, Rizk v. Cohen, 73 N.Y.2d 98, 103, 538 N.Y.S.2d 229, 535 N.E.2d 282;  Tassone v. Johannemann, 232 A.D.2d 627, 628, 648 N.Y.S.2d 708), the contract was breached, at the latest, in October 1988.   The cause of action accrued at that time, not when Coppotelli allegedly discovered the breach, and therefore this action, commenced in July 1995, is time-barred (see, CPLR 213[2] ).   Coppotelli's vague and conclusory allegation that he extended the time for performance is contrary to his claim that he was unaware that the defendant had not timely performed, and is insufficient to defeat the defendant's motion.

In light of our determination, it is unnecessary to address the defendant's remaining contentions.

MEMORANDUM BY THE COURT.