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Huss v. Rucci Oil Co.

Contract Breach, Negligence Claims Were Time-Barred; Dismissal Should Have Been Granted

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DECISION & ORDER

*1 Appeal from an order of the Civil Court of the City of New York, Richmond County (Lizette Colon, J.), entered February 26, 2016. The order denied defendant’s motion to dismiss the complaint as timebarred, pursuant to CPLR 3211 (a) (5), or based on documentary evidence, pursuant to CPLR 3211 (a) (1), or for failure to state a cause of action, pursuant to CPLR 3211 (a) (7).ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.On June 11, 2015, plaintiff Richard Huss, as Trustee of Huguenot Lodge #381 F. & A.M., commenced this action, alleging breach of contract and negligence based on defendant’s failure to obtain the necessary permits in its installation of a fuel storage tank at plaintiff’s premises. Defendant moved, pursuant to CPLR 3211 (a) (5), to dismiss the complaint as time-barred pursuant to CPLR 213 (2) for the breach of contract cause of action, and pursuant to CPLR 214 (4) for the negligence cause of action, both of which causes of action had allegedly accrued on December 19, 2008. In the alternative, defendant sought dismissal of the complaint based on documentary evidence, pursuant to CPLR 3211 (a) (1), or for failure to state a cause of action, pursuant to CPLR 3211 (a) (7). By order entered February 26, 2016, the Civil Court denied defendant’s motion, finding, among other things, that plaintiff had raised the issue of whether the doctrine of equitable estoppel was applicable, which would constitute a toll of the limitations period for each cause of action, and “[a]lso [that] the actual accrual of the action has not been established” by defendant, which is required to warrant a dismissal of

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