Contracts · MBE-tested
Niagara Recycling, Inc., Appellant, v. Sevenson Environmental Services, Inc., Formerly Known as Sevenson Construction Co., Inc., Also Known as Sevenson Construction Corp., Inc., Respondent
265 A.D.2d 852695 N.Y.S.2d 652·New York Supreme Court, Appellate Division·1999·NY
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Opinion
Niagara Recycling, Inc., Appellant, v Sevenson Environmental Services, Inc., Formerly Known as Sevenson Construction Co., Inc., Also Known as Sevenson Construction Corp., Inc., Respondent.
[695 NYS2d 652]
[MAJORITY]
—Judgment and order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action for breach of a contract in 1997 based upon defendant’s alleged failure to replace 27,000 cubic feet of clay “on or before July 15, 1988”. Supreme Court properly dismissed the action as time-barred (see, CPLR 213 [2]). Plaintiff’s reliance upon CPLR 206 (a) (2) is misplaced. That section is not applicable because the time for. performance was fixed by contract; nor does plaintiff contend that any subsequent action by defendant extended or reaffirmed defendant’s contractual obligation. (Appeal from Judgment and Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Pine, J. P., Wisner, Hurl-butt, Scudder and Callahan, JJ.