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Michael ERDHEIM, appellant, v. Marcia MATKINS, respondent.
In an action, inter alia, to recover on a loan, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), dated May 1, 1998, as granted those branches of the defendant's motion which were to dismiss the second and third causes of action as barred by the Statute of Limitations.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly dismissed the plaintiff's third cause of action to recover damages for conversion as barred by the three-year Statute of Limitations as set forth in CPLR 214(3) (see, Gold Sun Shipping Ltd. v. Ionian Transp., 245 A.D.2d 420, 666 N.Y.S.2d 677).
We agree with the Supreme Court that the plaintiff's second cause of action should also be dismissed, but for a different reason. In that cause of action, the plaintiff sought damages under a theory of unjust enrichment based upon the same allegations as those underlying the first cause of action. In both the first and second causes of action, the plaintiff alleged a default on a promissory note, which would constitute a breach of contract. Since the complaint fails to allege tort liability or a breach of duty distinct from, or in addition to, the breach of contract claim, the second cause of action should have been dismissed for this reason (see, Layden v. Boccio, 253 A.D.2d 540, 686 N.Y.S.2d 763; see generally, Clark-Fitzpatrick Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190).
MEMORANDUM BY THE COURT.
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Decided: March 08, 1999
Court: Supreme Court, Appellate Division, Second Department, New York.
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