EMD CONSTRUCTION CORP v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT

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

EMD CONSTRUCTION CORP., appellant, v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, et al., respondents.

Decided: February 16, 2010

MARK C. DILLON, J.P., HOWARD MILLER, RANDALL T. ENG, and SHERI S. ROMAN, JJ. Jimmy C. Solomos, Astoria, N.Y. (Niranjan G. Sagapuram of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Norman Corenthal of counsel), for respondents.

In an action to recover damages for breach of contract and unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), entered March 23, 2009, which granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint as time-barred and on the ground that it failed to comply with Administrative Code of the City of New York § 7-201(a).

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendants' motion to dismiss the complaint.   The complaint fails to allege that “at least thirty days ha[d] elapsed since the ․ claim ․ upon which [the] action ․ is founded [had been] presented to the comptroller for adjustment, and that the comptroller ha [d] neglected or refused to make an adjustment or payment thereof for thirty days after such presentment” (Administrative Code of City of N.Y. § 7-201 [a];  see Republic of Argentina v. City of New York, 25 N.Y.2d 252, 265, 303 N.Y.S.2d 644, 250 N.E.2d 698;  Raven El. Corp. v. City of New York, 291 A.D.2d 355, 739 N.Y.S.2d 28;  City of New York v. 611 W. 152nd St., 273 A.D.2d 125, 710 N.Y.S.2d 36;  City of New York v. Candelario, 223 A.D.2d 617, 637 N.Y.S.2d 311;  Chinatown Apts. v. New York City Tr. Auth., 100 A.D.2d 824, 474 N.Y.S.2d 763;  Arol Dev. Corp. v. City of New York, 59 A.D.2d 883, 399 N.Y.S.2d 674).  “Although technical defenses in abatement are not favored where prejudice has not resulted, courts may not relieve a litigant of a positive statutory mandate, even to avoid a harsh result” (P.J. Panzeca, Inc. v. Board of Educ., Union Free School Dist. No. 6, Towns of Islip & Smithtown, 29 N.Y.2d 508, 510, 323 N.Y.S.2d 978, 272 N.E.2d 488).

Additionally, the causes of action set forth in the complaint were not interposed within six years after their accrual in accordance with the six-year statute of limitations set forth in CPLR 213(2) (see D & L Assoc., Inc. v. New York City School Constr. Auth., 69 A.D.3d 435, 894 N.Y.S.2d 14 [1st Dept. 2010] ).   Moreover, the unjust enrichment cause of action, which is indistinguishable from the breach of contract cause of action (see Yenrab, Inc. v. 794 Linden Realty, LLC, 68 A.D.3d 755, 892 N.Y.S.2d 105), is governed by the same statute of limitations as that applicable to the breach of contract cause of action (see 37 Park Dr. S., Inc. v. Duffy, 63 A.D.3d 1040, 881 N.Y.S.2d 481 [applying six-year limitations period to unjust enrichment cause of action] ).   The plaintiff's remaining contentions, including those based on the doctrine of equitable estoppel and on the applicability of a 20-year statute of limitations (see Administrative Code of the City of New York § 7-207), are all without merit.

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