Opinion
13267 Index No. 650493/19 Case No. 2020-00787
03-04-2021
RUSI HOLDING CORP., et al., Plaintiffs–Appellants, v. INNER CITY ELEVATOR also known as Inner City Elevator Corp., et al., Defendants–Respondents.
Zane and Rudofsky, Melville (Edward S. Rudfosky of counsel), for appellants. Sonageri & Fallon, L.L.C., Garden City (James L. Sonageri of counsel), for respondents.
Zane and Rudofsky, Melville (Edward S. Rudfosky of counsel), for appellants.
Sonageri & Fallon, L.L.C., Garden City (James L. Sonageri of counsel), for respondents.
Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Carol Ruth Feinman, J.), entered July 8, 2019, which denied as moot plaintiffs' motion to strike and/or dismiss defendants' counterclaim as, inter alia, time-barred, and marked the action disposed based upon the parties' so-ordered stipulation discontinuing a prior action between them raising the same claims, unanimously modified, on the law, the action reinstated, plaintiffs' motion granted to the extent of dismissing "count 2" of the counterclaim alleging detrimental reliance and promissory estoppel, and otherwise affirmed, without costs.
The parties agreed in a written stipulation that plaintiffs could discontinue their prior action without prejudice and commence a new action on the same claims, provided it was timely done within 30–days of the discontinuance (see A. Colish, Inc. v. Abramson, 178 A.D.2d 252, 577 N.Y.S.2d 60 [1st Dept. 1991] ). Plaintiffs satisfied the stipulation's conditions when commencing this new action, and a stipulation between parties to discontinue a prior action "should be given its intended effect" ( Matter of Baird, Patrick & Co. v. Epstein, 244 A.D.2d 155, 155, 665 N.Y.S.2d 259 [1st Dept. 1997] ; see Bailey v. Brookdale Univ. Hosp. & Med. Ctr., 292 A.D.2d 328, 738 N.Y.S.2d 586 [2d Dept. 2002] ).
Defendants are not precluded from asserting a counterclaim in this new action despite not having asserted one in the prior action, and even though the statute of limitations has run on such counterclaim. CPLR 203(d) authorizes a defendant to assert any counterclaims or defenses that may arise out of the same transactions or occurrences upon which a claim in the complaint depends, provided such counterclaim or defense serves as only a shield "to the extent of the demand in the complaint," and even though the counterclaim may be time-barred ( X.L.O. Concrete Corp. v. Rivergate Corp., 190 A.D.2d 113, 118, 597 N.Y.S.2d 302 [1st Dept. 1993], affd 83 N.Y.2d 513, 611 N.Y.S.2d 786, 634 N.E.2d 158 [1994] ; see Mintz & Fraade, P.C. v. Docuport, Inc., 110 A.D.3d 496, 973 N.Y.S.2d 139 [1st Dept. 2013] ). Here, plaintiffs, in their complaint, allege, inter alia, that defendants breached the parties' agreements for the provision of elevator services and equipment.
"Count 1" of defendants' counterclaim sufficiently pleads a counterclaim for quasi contract based on allegations that defendants provided elevator services and materials to plaintiffs and invoiced plaintiffs for such work, but plaintiffs never made payment on such invoices (see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ).
However, "Count 2" of defendants' counterclaim alleging detrimental reliance and promissory estoppel in connection with plaintiffs' alleged promises to pay defendants for their services and materials lacks factual allegations of a sufficiently clear and unambiguous promise, reasonable reliance by defendants on the purported promises, and injury caused by the reliance (see Castellotti v. Free, 138 A.D.3d 198, 204, 27 N.Y.S.3d 507 [1st Dept. 2016] ). This second counterclaim should therefore be dismissed for failure to state a claim.
We have considered the remaining arguments and find them unavailing.