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Boone Associates, L.P. v. Leibovitz

Appellate Division of the Supreme Court of New York, First Department
Dec 21, 2004
13 A.D.3d 267 (N.Y. App. Div. 2004)

Summary

In Boone Assoc., L.P. v Leibovitz (13 AD3d 267 [1st Dept 2004]), the plaintiff brought an action to enforce an oral contract entered into in August 1990 for the defendant to take a series of photography portraits.

Summary of this case from Stafford v. Scientia Health Group, Inc.

Opinion

4987

December 21, 2004.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 23, 2004, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Before: Nardelli, J.P., Andrias, Ellerin, Marlow and Sweeny, JJ.


Plaintiff seeks to enforce an oral contract entered into in August 1990 pursuant to which defendant agreed to take a series of photo portraits. All of the contractually contemplated portraits but the last were shot and delivered within a month of the contract. In October 2003, 13 years later, plaintiff commenced this action to compel defendant to take and deliver the final portrait due under the agreement or, alternatively, to recover damages for defendant's breach of that obligation. It is undisputed that the agreement was silent as to the time within which it was to be performed. In such a case, performance is due within a "reasonable time" under the particular circumstances ( see Escobar v. Gonzalez, 277 AD2d 93). Here, the motion court correctly found that defendant's performance of the contract should reasonably have been completed within a few months, or no later than the end of 1990. Thus, the court properly concluded that the action was untimely, having been commenced more than six years after the alleged breach and subsequent to the expiration of the applicable limitation period (CPLR 213). Nor did certain writings of defendant or her representatives serve to renew the limitation period pursuant to General Obligations Law § 17-101, since they were, at most, offers of courtesy or accommodation and not express acknowledgments of a still enforceable contractual obligation ( see Nagle v. Herold, 30 F Supp 905 [WD NY 1939]).


Summaries of

Boone Associates, L.P. v. Leibovitz

Appellate Division of the Supreme Court of New York, First Department
Dec 21, 2004
13 A.D.3d 267 (N.Y. App. Div. 2004)

In Boone Assoc., L.P. v Leibovitz (13 AD3d 267 [1st Dept 2004]), the plaintiff brought an action to enforce an oral contract entered into in August 1990 for the defendant to take a series of photography portraits.

Summary of this case from Stafford v. Scientia Health Group, Inc.
Case details for

Boone Associates, L.P. v. Leibovitz

Case Details

Full title:BOONE ASSOCIATES, L.P., Doing Business as THE MARY BOONE GALLERY…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 21, 2004

Citations

13 A.D.3d 267 (N.Y. App. Div. 2004)
786 N.Y.S.2d 518

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