Opinion
April 16, 1990
Appeal from the Supreme Court, Dutchess County (Benson, J.).
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision; and it is further,
Ordered that the appeal from the orders entered February 1, 1989 and July 5, 1989, respectively, are dismissed; and it is further,
Ordered that the judgment dated June 29, 1989 is reversed, on the law, the decision, the orders appealed from, and the order entered November 16, 1988 are vacated, the appellant's motion to dismiss the complaint is granted, and the complaint is dismissed; and it is further,
Ordered that the appellant is awarded one bill of costs.
The appeal from the orders entered February 1, 1989 and July 5, 1989, respectively, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from those orders are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Although the judgment appealed from was entered upon the appellant's default in answering the complaint, it is now well settled that "an appeal would lie from such a final judgment but review would be limited to 'matters which were the subject of contest below' (James v. Powell, [ 19 N.Y.2d 249], 256, n 3)" (Katz v. Katz, 68 A.D.2d 536, 541). In the case at bar, the appellant moved to dismiss the complaint "in it's [sic] entirety" based "upon the grounds [sic] that the alleged causes of action are barred by the statute of limitations". This motion was opposed by the plaintiff, and by order entered November 16, 1988, the Supreme Court denied the motion.
The motion of the appellant should have been granted. The complaint was served on him in December 1987. The first cause of action seeks "a mandatory injunction" ordering the appellant "to issue and to physically deliver to Plaintiff his 50 shares of stock in Defendant corporation", pursuant to a written agreement between the plaintiff and the appellant dated December 30, 1977. The first cause of action is essentially one for specific performance of a contract to sell the plaintiff a part of the appellant's ownership interest in the defendant corporation. Accordingly, it is governed by the six-year Statute of Limitations (see, CPLR 213; Lituchy v. Guinan Lithographic Co., 60 A.D.2d 622). A review of the contract's terms indicates that it was to be performed by the appellant "on the date hereof". Accordingly, any breach of contract by the appellant occurred on December 30, 1977, and the first cause of action is therefore time barred (see, Simon v. Electrospace Corp., 28 N.Y.2d 136, 145; cf., Lituchy v. Guinan Lithographic Co., supra; Bernstein v. La Rue, 120 A.D.2d 476). Since the plaintiff cannot prevail on his first cause of action, his second cause of action, i.e., a purported shareholders' derivative action, must also be dismissed. In view of our determination, we do not address the merits of the appellant's motion to vacate his default in answering the complaint. Mangano, P.J., Kunzeman, Eiber and Harwood, JJ., concur.