HUYNH v. GREENE BRIAN AND STERN PARTNERSHIP

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

Tony HUYNH, individually and as Assignee of Willow Garden Natural, Inc., Plaintiff-Appellant, v. GREENE, BRIAN AND STERN PARTNERSHIP, et al., Defendants-Respondents.

Decided: November 28, 2006

BUCKLEY, P.J., SAXE, WILLIAMS, SWEENY, MALONE, JJ. Miranda Sokoloff Sambursky Slone Verveniotis LLP, Mineola (Steven Verveniotis of counsel), for appellant. Smith & Shapiro, New York (Harry Shapiro of counsel), for Greene, Brian and Stern Partnership, Rita Greene, Sondra Schulman and Brian Greene, respondents. Scarola Ellis LLP, New York (Mark G. Peters of counsel), for Daniel Frishwasser, respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered December 8, 2005, which granted the motions pursuant to CPLR 3211(a) by defendants Rita Greene and the partnership, and by defendant Frishwasser, to dismiss the complaint, unanimously affirmed, without costs.

 Plaintiff's cause of action for breach of contract was barred for any claims arising more than six years prior to commencement of the action (CPLR 213[2];  see Natimir Rest. Supply v. London 62 Co., 140 A.D.2d 261, 528 N.Y.S.2d 564 [1988] ).   That portion of the claim not barred by the statute of limitations nonetheless failed to state a cause of action in light of an unambiguous clause in the lease requiring plaintiff to pay 100% of the metered water charges billed for the entire building (see Lake Constr. & Dev. Corp. v. City of New York, 211 A.D.2d 514, 621 N.Y.S.2d 337 [1995] ).

 The fraud claims were properly dismissed as having been raised more than six years after the alleged occurrence.   Plaintiff had knowledge of facts enabling him, with reasonable diligence, to infer defendant's fraud, and this action should have been commenced within two years of that discovery (see generally Saphir Intl., SA v. UBS PaineWebber Inc., 25 A.D.3d 315, 807 N.Y.S.2d 58 [2006];  K & E Trading & Shipping v. Radmar Trading Corp., 174 A.D.2d 346, 570 N.Y.S.2d 557 [1991] ).

We have considered plaintiff's remaining arguments and find them without merit.