Chi Kee Pang, also known as Ronald Chikee Pang, appellant, v. Synlyco, Ltd., et al., respondents.

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

Chi Kee Pang, also known as Ronald Chikee Pang, appellant, v. Synlyco, Ltd., et al., respondents.

2010–08668 2010–11304 (Index No. 16452/09)

Decided: November 22, 2011

MARK C. DILLON, J.P. THOMAS A. DICKERSON CHERYL E. CHAMBERS ROBERT J. MILLER, JJ. Kevin Kerveng Tung, P.C., Flushing, N.Y. (Kenji Fukuda of counsel), for appellant. Law Offices of David J. Sutton, P.C., Garden City, N.Y. (Anthony N. Elia of counsel), for respondents.

Argued—October 14, 2011


In an action to recover damages for breach of contract, unjust enrichment, and fraud, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kitzes, J.), entered June 30, 2010, which granted the defendants' renewed motion for summary judgment dismissing the complaint as time-barred, and (2) a judgment of the same court entered September 27, 2010, which, upon the order, is in favor of the defendants and against him dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248).   The issues raised on the appeal from the order are brought up for review on the appeal from the judgment (see CPLR 5501[a] [1] ).

The Supreme Court correctly determined that the instant action was time-barred under the applicable statutes of limitations.   The cause of action to recover damages for breach of contract is barred by the six-year statute of limitations (see CPLR 213[2] ).   The plaintiff's contention that the statute of limitations was tolled by the defendants' acknowledgment of the parties' alleged oral agreement is without merit, since the plaintiff failed to submit a writing to that effect, and General Obligations Law § 17–101 provides, in relevant part, that, with certain exceptions not applicable here, “[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provision of limitations of time for commencing actions under the civil practice law and rules”(emphasis supplied) (cf.  Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 815).   The cause of action to recover damages for unjust enrichment, which is indistinguishable from the breach of contract cause of action, is, consequently, also barred by the six-year statute of limitations set forth in CPLR 213(2) (see EMD Constr.   Corp. v New York City Dept. of Hous. Preserv.   & Dev., 70 AD3d 893, 894;  37 Park Dr. S., Inc. v. Duffy, 63 AD3d 1040, 1041).   The cause of action to recover damages for fraud is time-barred inasmuch as the action was not commenced within six years of the date on which the cause of action accrued or within two years after the time the plaintiff could with reasonable diligence have discovered the fraud (see CPLR 213 [8];  Prand Corp. v. County of Suffolk, 62 AD3d 681, 683;  Pericon v. Ruck, 56 AD3d 635, 636).   Contrary to the plaintiff's contention, the doctrine of equitable estoppel is unavailable to toll the statute of limitations since, in response to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether any action or representation by the defendants induced him to forego the timely commencement of an action to enforce his rights under the alleged oral agreement (see Javaheri v. Old Cedar Dev. Corp., 84 AD3d 881, 886;  Jones v. Safi, 58 AD3d 603, 604).

In view of our determination, we need not address the plaintiff's remaining contentions.



Matthew G. Kiernan

Clerk of the Court

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