Calendar Date: April 26, 2018Before: Garry, P.J., Egan Jr., Clark, Mulvey and Rumsey, JJ.__________Robert Bruce Carroll, Connelly, appellant pro se.Corrigan, McCoy & Bush, PLLC, Rensselaer (Scott W. Bush ofcounsel), for respondent.__________Rumsey, J.Appeal from an order of the Supreme Court (Mott, J.),entered November 8, 2016 in Ulster County, which granteddefendant’s motion for summary judgment dismissing the complaint.Defendant operates a marina in the Town of Esopus, UlsterCounty where it rents dock space during the boating season andstorage for boats during the winter season. Plaintiff rented adock slip and winter storage for his boat from defendant forseveral years and, during this time, he resided in his boat on ayear-around basis. By letter dated May 4, 2008, defendantprovided plaintiff with written notice that his boat would belaunched on May 18, 2008 and that he was expected to vacatedefendant’s marina at that time. Plaintiff then initiated aproceeding in Town Court to stay the removal of his boat fromdefendant’s property. Town Court granted a stay that remained in-2- 524587effect until June 17, 2008. Thereafter, defendant launchedplaintiff’s boat and transported it to a nearby public dock whereit was anchored. In May 2014, plaintiff commenced this actionasserting claims for breach of contract, personal injury,harassment, constructive eviction and conversion. Followingjoinder of issue, defendant moved for summary judgment dismissingthe complaint, which Supreme Court granted. Plaintiff appeals.Supreme Court properly determined that plaintiff’s claimsfor conversion, property damage and personal injury were timebarred.Each of these causes of action is subject to a threeyearstatute of limitations (see CPLR 214 [3], [4]), and theallegations on which each was based occurred not later than June2008, when plaintiff’s boat was removed from defendant’s marina.Plaintiff’s argument that commencement of the Town Courtproceeding seeking a stay of his eviction from the marina, whichconcluded in June 2008, tolled the statute of limitations ismeritless. Supreme Court also properly dismissed plaintiff’sclaim of harassment, because “New York does not recognize acommon-law cause of action to recover damages for harassment”(Wells v Town of Lenox, 110 AD3d 1192, 1193-1194 [2013] [internalquotation marks and citations omitted]), and plaintiff abandonedhis constructive eviction claim by failing to address that issuein his brief on appeal (see Brown v Government Empls. Ins. Co.,156 AD3d 1087, 1088 n 1 [2017]).With respect to plaintiff’s breach of contract claim,“[t]he essential elements of a cause of action to recover damagesfor breach of contract are the existence of a contract, theplaintiff’s performance pursuant to the contract, the defendant’sbreach of its contractual obligations, and damages resulting fromthe breach. To create a binding contract, there must be amanifestation of mutual assent sufficiently definite to assurethat the parties are truly in agreement with respect to allmaterial terms” (WFE Ventures, Inc. v Mills, 139 AD3d 1157, 1160[2016] [internal quotation marks and citations omitted]). In hiscomplaint, as amplified by the bill of particulars, plaintiffalleged the formation of an oral contract to rent dock space fromdefendant for the 2008 boating season, that he had performedpursuant to its terms by timely paying the first month’s rent of$500 and that defendant’s removal of his boat from the marinaconstituted a breach that caused him to sustain damages.Defendant met its burden of showing prima facie entitlementto summary judgment dismissing this cause of action by submittingthe affidavit of James Rothlein, its owner, who averred that nocontract was formed, as evidenced in part by plaintiff’s refusalto sign a written lease agreement. In opposition to defendant’smotion, plaintiff submitted a copy of an invoice from defendantthat itemized the charges for winter storage and spring launchand showed that no balance was due in April 2008. The invoicealso acknowledged receipt of a $500 payment from plaintiff onApril 14, 2008 for a monthly slip charge. Plaintiff alsosubmitted an affidavit in which he averred that the $500 paymentaccepted by defendant is evidence that the parties entered intoan oral agreement for rental of dock space for the 2008 boatingseason. The facts alleged in plaintiff’s affidavit areconsistent with his deposition testimony, which was submitted bydefendant, in which he claimed that he made an oral agreementwith defendant’s employee. Plaintiff’s argument that the oralagreement was consistent with the parties’ prior dealings becausehe had entered into a written agreement for only one seasonduring his long period of occupancy is corroborated by Rothlein’sallegation that “[o]ver the years[, plaintiff] refused to signany license agreement.” When viewed in the light most favorableto plaintiff, as the nonmoving party (see Hall v Queensbury UnionFree Sch. Dist., 147 AD3d 1249, 1250 [2017]), plaintiff’ssubmissions are sufficient to establish the existence of atriable issue of fact regarding formation of an oral contract.Accordingly, Supreme Court erred in dismissing the breach ofcontract cause of action.Garry, P.J., Egan Jr., Clark and Mulvey, JJ., concur.ORDERED that the order is modified, on the law, withoutcosts, by reversing so much thereof as granted defendant’s motionfor summary judgment dismissing the breach of contract cause ofaction; motion denied to that extent; and, as so modified,affirmed.ENTER:Robert D. MaybergerClerk of the Court
