New York Appellate Division Reports

LYNFORD v. WILLIAMS, 2005-09355 [2d Dept 11-28-2006] 2006
NY Slip Op 08945 Lynford v. Williams. 2005-09355,
2005-11466, 2006-01091. Appellate Division of the Supreme
Court of New York, Second Department. Decided on November
28, 2006.

Cuddy & Feder, LLP, White Plains, N.Y. (Joshua E. Kimerling
of counsel), for appellant.

Bryan Cave, LLP, New York, N.Y. (Robert A. Wolf and John D.
Kircher of counsel), for respondent.




In an action to recover on a promissory note brought by
motion for summary judgment in lieu of complaint pursuant
to CPLR 3213, the defendant Hugh Williams appeals (1) from
an order of the Supreme Court, Westchester County
(Bellantoni, J.), entered August 23, 2005, which granted
the motion and denied his cross motion for summary judgment
dismissing the action insofar as asserted against him as
time barred, (2), as limited by his brief, from so much of
a judgment of the same court dated October 12, 2005,
entered upon the order, as is in favor of the plaintiff and
against him in the total sum of $294,764.02, and (3), as
limited by his brief, from so much of an order of the same
court entered December 20, 2005, as, upon reargument,
adhered to the prior determination.

ORDERED that the appeal from the order entered August 23,
2005, is dismissed, without costs or disbursements; and it
is further,

ORDERED that the judgment is reversed insofar as appealed
from, on the law, without costs or disbursements, the
motion is denied, the cross motion of the defendant Hugh
Williams is granted, the action is dismissed insofar as
asserted against the defendant Hugh Williams, the action
against the remaining defendant is severed, and the order
entered August 23, 2005, is modified accordingly; and it is

ORDERED that the appeal from the order dated December 20,
2005, made upon reargument, is dismissed as academic,
without costs or disbursements.

The appeal from the intermediate order entered August 23,
2005, must be dismissed because the right of direct appeal
therefrom terminated with the entry of judgment in the
action (see Matter of Aho, 39 NY2d 241, 248). The issues
raised on the appeal from that order are brought up for
review and have been considered on the appeal from the
judgment (see CPLR 5501[a][1]).

On August 16, 1998, the defendant Hugh Williams
(hereinafter the appellant) executed a demand promissory
note in favor of the plaintiff. In 2005 the plaintiff
unsuccessfully requested payment pursuant to the note. He
thereafter commenced this action by motion for summary
judgment in lieu of complaint to recover on the note. The
appellant cross-moved for summary judgment dismissing the
action insofar as asserted against him, contending that the
relevant statute of limitations had expired. In response,
the plaintiff contended that the limitations period had
been renewed under General Obligations Law § 17-101
by two alleged acknowledgments of the debt made by the
appellant. In support, the plaintiff submitted a school
financial aid application executed by the appellant in
connection with his daughter’s education, and some hearsay
evidence regarding the appellant’s alleged submission of a
statement of net worth in a pending matrimonial action,
both of which made reference to the debt owed to the
plaintiff. The Supreme Court granted the plaintiff’s motion
and denied the appellant’s cross motion, finding that the
appellant had validly acknowledged the debt so as to take
the matter out of the statute of limitations pursuant to
General Obligations Law § 17-101. We reverse.

Pursuant to CPLR 213(2), the plaintiff had six years within
which to commence this action to recover on the note.
Moreover, the cause of action to recover on this note
accrued at the time of its execution on August 16, 1998
(see Schleifer v Schlass, 303 AD2d 204; Shelley v Dixon
Equities, 300 AD2d 566; Shelley v Shelley, 299 AD2d 405,
406; Skiadas v Terovolas, 271 AD2d 521). Accordingly, this
action, having been commenced more than six years after the
execution of the note, was time barred.

While General Obligations Law § 17-101 effectively
revives a time-barred claim when the debtor has signed a
writing which validly acknowledges the debt (see Banco do
Brasil v State of Antigua & Barbuda, 268 AD2d 75, 77;
Anonymous v Anonymous, 172 AD2d 285, 287), the Supreme
Court erred in applying that statute to the facts of this
case. Assuming arguendo that the references to the debt in
the financial aid application and the alleged statement of
net worth otherwise satisfied the elements of a valid
acknowledgment (see generally Hui v East Broadway Mall, 4
NY3d 790, 791; Sullivan v Troser Mgt., 15 AD3d 1011,
1011-1012; Knoll v Datek Sec. Corp., 2 AD3d 594, 595), it is
undisputed that these documents were neither communicated
to the plaintiff or to anyone on his behalf, nor intended
to influence the plaintiff’s conduct in any manner. Indeed,
the plaintiff did not learn of the subject documents until
after he commenced this action, and it is clear that he did
not delay commencement of the action based on their
contents. Accordingly, absent such communication to the
plaintiff, these documents do not suffice to take this
action out of the operation of the statute of limitations,
and the appellant’s cross motion to dismiss the action
insofar as asserted against him as time barred is granted
(see Matter of Kendrick, 107 NY 104, 109; Wakeman v
Sherman, 9 NY 85, 91-92; Flynn v Flynn, 175 AD2d 51, 52;
Matter of Sonnenthal, 39 Misc 2d 901, 903; Matter of Brill,
318 B.R. 49, 59; see generally 75A NY Jur 2d Limitations
and Laches § 347).

The plaintiff’s alternative argument is raised for the
first time on appeal and therefore is not properly before
the court (see DiLauria v Town of Harrison, 32 AD3d 490;
Festinger v Edrich, 32 AD3d 412; Sandoval v Juodzevich, 293
AD2d 595; Orellano v Samples Tire Equip. & Supply Corp.,
110 AD2d 757).