The following e-filed documents, listed by NYSCEF document number (Motion 003) 81, 82, 83, 84, 85, 86, 87, 88, 89 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION The Defendants’ motion (Mtn. Seq. No. 003) to dismiss is denied except to the extent set forth below. In the well pled Amended Complaint (the AC; NYSCEF Doc. No. 56), the Plaintiffs assert a single cause of action against the Defendants — i.e., breach by failing to pay amounts due under three issues of TruPS on two dates — June 23, 2017 and July 7, 2019 (NYSCEF Doc. No. 56,
14-15, 220-243). The lawsuit was filed on October 14, 2022, well within the six-year statute of limitations for breach of contract (CPLR §213; Chase Sci. Research, Inc. v. NIA Group, Inc., 96 NY2d 20, 25 [2001]). As such, these claims are timely and properly asserted against the Defendants. Although the Defendants are correct that any claims predicated on a breach of the successor obligation clause by virtue of the failure to execute a supplemental indenture are untimely because such claims would have accrued in 2009, 2013, and 2014, this is not the claim asserted against these Defendants in this case. As discussed above, the claim asserted in this case is for breach of contract for the failure to pay the TruPS on June 23, 2017 and July 7, 2019 including as successor obligors. The allegations that the failure to execute a supplemental indenture was also a breach provides background and highlights why under the circumstances of the combination transactions discussed in Alesco (hereinafter defined) the Plaintiffs have stated a claim as to why the Defendants may be held contractually liable for the failure to pay the TruPS. However, any claim based on the failure to execute a supplemental indenture pursuant to the successor liability provisions in 2009, 2013 and 2014 is dismissed as untimely and the Plaintiffs cannot claim separate damages based on that breach from the damages asserted for failure to pay the TruPS including as successor obligors. The Defendants are also not entitled to dismissal based on their argument that they cannot be held contractually liable as “successors” under the TruPS indentures: The Amended Complaint should also be dismissed to the extent it alleges TGI, TGIL and ACP Re breached contracts they never signed nor consented to (NYSCEF Doc. No. 82 at 7). [This Court's prior decisions] are not sufficient, as a matter of law, to impose TruPS liabilities on the nonsignatory Defendants because contracts cannot bind nonsignatories merely by saying so (NYSCEF Doc. No. 89 at 3). This argument was previously advanced in the related case (Alesco) captioned Alesco Preferred Funding VIII, Ltd. v. ACP Re, Ltd., 209 AD3d 558, 559 (1st Dept 2022) involving substantially the same facts and many of the same parties. Relying on Stefatos v. Fred-Doug Manager, LLC, 116 A.D.3d 419 (1st Dept 2014) (NYSCEF Doc. No. 189 at 11-12, in Alesco), the defendants in Alesco argued: Plaintiffs also purport to sue TGIL and ACP for breach of the indentures. (AC
