JOSEPH GAIER v. IVELI

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

JOSEPH GAIER, P.C., Plaintiff-Appellant, v. Thomas IVELI, et al., Defendants-Respondents.

Decided: October 23, 2001

NARDELLI, J.P., TOM, MAZZARELLI, ELLERIN and LERNER, JJ. Joseph Gaier, for Plaintiff-Appellant. Wayne M. Greenwald, for Defendants-Respondents.

Order, Supreme Court, New York County (Edward Lehner, J.), entered February 7, 2001, which, in an action to recover legal fees, insofar as appealed from, granted defendants' motion to dismiss the action as time-barred, unanimously affirmed, without costs.

 Plaintiff's claim that defendants should be equitably estopped from asserting the six-year Statute of Limitations against his causes of action for breach of contract was properly rejected for lack of allegations showing that plaintiff's reliance on defendants' promises of future payment was due to defendants' fraud or misrepresentation (see, Simcuski v. Saeli, 44 N.Y.2d 442, 448-449, 406 N.Y.S.2d 259, 377 N.E.2d 713). As the motion court held, no more is alleged here than a promise to pay in the future when business improved.   Nor can plaintiff recover for account stated.   The summary of defendants' account, while sent to defendants within six years prior to institution of the action in 2000, merely restated the amounts that were previously stated in invoices dated between 1988 and 1991.  “[I]t is not within the power of the creditor to extend the running of the Statute of Limitations merely by rendering the same account over again from time to time.”   (Slayback v. Alexander, 179 App.Div. 696, 698, 167 N.Y.S. 194).   We have considered plaintiff's other contentions and find them unavailing.