NATIONAL AMUSEMENTS INC v. SOUTH BRONX DEVELOPMENT CORP

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

NATIONAL AMUSEMENTS, INC., Plaintiff-Respondent, v. SOUTH BRONX DEVELOPMENT CORP., Defendant-Appellant.

Decided: August 06, 1998

Before MILONAS, J.P., WALLACH, RUBIN, MAZZARELLI and SAXE, JJ. Leo T. Crowley, for plaintiff-respondent. Rand J. Levin, for defendant-appellant.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered July 18, 1997, which, in a declaratory judgment action by plaintiff tenant against defendant landlord involving the method by which plaintiff's share of defendant's common area charges and taxes are to be calculated under the parties' lease, insofar as appealed from, dismissed defendant's second affirmative defense and second counterclaim for reformation as time-barred, unanimously affirmed, without costs.

 The IAS court correctly held that the underlying claim of mistake is untimely, having accrued when the subject lease was executed (see, Matter of Wallace v. 600 Partners Co., 86 N.Y.2d 543, 634 N.Y.S.2d 669, 658 N.E.2d 715;   Arrathoon v. East N.Y. Sav. Bank, 169 A.D.2d 804, 565 N.Y.S.2d 172, lv denied 77 N.Y.2d 808, 570 N.Y.S.2d 488, 573 N.E.2d 576), and, notwithstanding our comment in Davis v. Davis, 95 A.D.2d 674, 675, 463 N.Y.S.2d 462, was not subject to a discovery accrual (see, First Natl. Bank v. Volpe, 217 A.D.2d 967, 968, 629 N.Y.S.2d 906).   Defendant's other arguments with regard to timeliness are without merit.   In view of the foregoing, it is unnecessary to reach the parties' other contentions.

MEMORANDUM DECISION.