BOCCONE v. ISLAND FEDERAL MORTGAGE CORPORATION (1999)

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated June 10, 1998, which denied his motion for summary judgment on the complaint and to dismiss the defendants' counterclaim to recover damages for injury to property, and granted the cross motion of the defendants for summary judgment dismissing the complaint insofar as it is asserted against the defendant Steven Baritz.

ORDERED that the order is modified, on the law, by deleting the provision thereof which denied that branch of the plaintiff's motion which was for summary judgment dismissing the defendants' counterclaim as time-barred, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

The defendants' counterclaim to recover damages for injury to property was first interposed in an answer served in January 1997, over three years after the cause of action accrued.   The counterclaim did not relate to the same transactions or occurrences referred to in the original complaint or the original answer.   Accordingly, the counterclaim is time-barred (see, CPLR 203 [f];  Hellman v. Hoenig & Co., 244 A.D.2d 529, 665 N.Y.S.2d 581).

The appellant's remaining contentions are without merit (see, Holzer Assocs. v. Orta, 250 A.D.2d 737, 672 N.Y.S.2d 915;  Fischer v. Weiland, 241 A.D.2d 439, 661 N.Y.S.2d 516;  American Media Concepts v. Atkins Pictures, 179 A.D.2d 446, 578 N.Y.S.2d 193;  Diplacidi v. Gruder, 135 A.D.2d 395, 396, 522 N.Y.S.2d 1).

MEMORANDUM BY THE COURT