EDUCATION RESOURCES INSTITUTE INC v. HAWKINS

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

The EDUCATION RESOURCES INSTITUTE, INC., Plaintiff–Respondent, v. Frederick HAWKINS, Defendant–Appellant.

Decided: October 11, 2011

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ABDUS–SALAAM, JJ. Law Office of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), for appellant. Susan R. Nudelman, Dix Hills, for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 19, 2010, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the complaint pursuant to CPLR 3211(a) (5) and (7), unanimously modified, on the law, to grant the motion as to the second cause of action, and otherwise affirmed, without costs.

 Defendant failed to establish prima facie that this action alleging breach of a student loan agreement is barred by the applicable six-year statute of limitations (CPLR 213[2];  see Benn v. Benn, 82 A.D.3d 548, 918 N.Y.S.2d 465 [2011] ).   The action was commenced in July 2009.   The complaint alleges that defendant defaulted on the loan when he failed to make an installment payment on May 7, 2006.   Defendant offered no evidence to support a finding that the limitations period began to run in 2003.

 Plaintiff's concession that it mistakenly opposed defendant's motion on the ground that the statute of limitations was preempted by federal law does not preclude review of its new argument that the allegations in the complaint demonstrate that the action is not time-barred.   The statute of limitations issue is one of law, which may be determined from the face of the complaint and from defendant's admission that he made payments on the loan through approximately October 2004 (see Gonzalez v. New York City Health & Hosps. Corp., 29 A.D.3d 369, 370, 815 N.Y.S.2d 53 [2006] ).   In any event, defendant's admissions would toll the statute of limitations (see Banco do Brasil v. State of Antigua & Barbuda, 268 A.D.2d 75, 707 N.Y.S.2d 151 [2000] ).   Defendant conceded in his reply papers that he had drafted, signed and sent a letter, dated March 6, 2006, to plaintiff's counsel acknowledging the balance due on the loan and unequivocally expressing an intent to pay it.

 Plaintiff's second cause of action alleges that defendant owes “the sum of $.00 [sic ], representing late charges due.”   While the insufficiency of a request for relief need not be fatal to a cause of action, this cause of action should be dismissed because the complaint alleges no facts to support plaintiff's claimed entitlement to late charges, and plaintiff offered no factual support in opposition to defendant's motion (see generally Gro–Up Frocks v. Manners, 55 A.D.2d 531, 389 N.Y.S.2d 107 [1976] ).