Opinion
2012-04-20
CB RICHARD ELLIS–BUFFALO, LLC, Plaintiff–Appellant, v. KUNVARJI HOTELS, INC. and Bhagwanji Kunvarji, Defendants–Respondents.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered July 21, 2011 in a breach of contract action. The order, inter alia, granted defendants' motion to dismiss plaintiff's complaint.Lewandowski & Associates, West Seneca (Lindsay M. Swensen of Counsel), for plaintiff–appellant. Damon Morey LLP, Buffalo (Brian D. Gwitt of Counsel), for defendants–respondents.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered July 21, 2011 in a breach of contract action. The order, inter alia, granted defendants' motion to dismiss plaintiff's complaint.Lewandowski & Associates, West Seneca (Lindsay M. Swensen of Counsel), for plaintiff–appellant. Damon Morey LLP, Buffalo (Brian D. Gwitt of Counsel), for defendants–respondents.
MEMORANDUM:
Plaintiff, a real estate broker, commenced this action seeking to recover the commission allegedly due for services it provided to defendants in connection with the lease of commercial real property by defendant Kunvarji Hotels, Inc. (KHI). Supreme Court properly granted defendants' motion to dismiss the complaint and denied plaintiff's cross motion seeking partial summary judgment on liability with respect to the breach of contract and quantum meruit causes of action. Pursuant to CPLR 213, a six-year limitations period applies to the causes of action premised upon breach of contract ( see Ely–Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402–403, 599 N.Y.S.2d 501, 615 N.E.2d 985), quantum meruit ( see Erdheim v. Gelfman, 303 A.D.2d 714, 714, 757 N.Y.S.2d 320, lv. denied 100 N.Y.2d 514, 769 N.Y.S.2d 200, 801 N.E.2d 421), and unjust enrichment ( see Sirico v. F.G.G. Prods., Inc., 71 A.D.3d 429, 434, 896 N.Y.S.2d 61). Each of those causes of action accrued when plaintiff earned its commission, i.e., the date on which KHI and the tenant executed the lease agreement ( see Feinberg Bros. Agency v. Berted Realty Co., 70 N.Y.2d 828, 830, 523 N.Y.S.2d 439, 517 N.E.2d 1325; Gronich & Co. v. 649 Broadway Equities Co., 169 A.D.2d 600, 602, 565 N.Y.S.2d 18). The lease agreement was executed in January 2005 and the instant action was commenced more than six years later, on February 23, 2011. Thus, the causes of action at issue are time-barred.
The court properly denied plaintiff's cross motion on the further ground that issue had not been joined ( see CPLR 3212[a]; Matter of Estate of Jason v. Herdman, 70 A.D.3d 1382, 893 N.Y.S.2d 782). Finally, we note that plaintiff has not raised any contention in its brief concerning the dismissal of the two remaining causes of action, and thus it has abandoned any issues with respect thereto ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.