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  • Benjamin Tayne, John Radin, William Dodge, Stefan Chernaski v. City Of Long Beach Other Matters - Contract - Other document preview
  • Benjamin Tayne, John Radin, William Dodge, Stefan Chernaski v. City Of Long Beach Other Matters - Contract - Other document preview
  • Benjamin Tayne, John Radin, William Dodge, Stefan Chernaski v. City Of Long Beach Other Matters - Contract - Other document preview
  • Benjamin Tayne, John Radin, William Dodge, Stefan Chernaski v. City Of Long Beach Other Matters - Contract - Other document preview
  • Benjamin Tayne, John Radin, William Dodge, Stefan Chernaski v. City Of Long Beach Other Matters - Contract - Other document preview
  • Benjamin Tayne, John Radin, William Dodge, Stefan Chernaski v. City Of Long Beach Other Matters - Contract - Other document preview
						
                                

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FILED: NASSAU COUNTY CLERK 08/03/2022 12:13 PM INDEX NO. 617340/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 08/03/2022 Exhibit 11 FILED: NASSAU COUNTY CLERK 08/03/2022 12:13 PM INDEX NO. 617340/2019 NYSCEF Keles v.NO. DOC. Hultin, 1322015 WL 13035454 (2015) RECEIVED NYSCEF: 08/03/2022 2015 WL 13035454 (N.Y.Sup.) (Trial Order) Supreme Court of New York. Kings County Resat KELES, Plaintiff, v. Jerry M. HULTIN, Sunil Kumar, Jean Carol Bonilla, T.C. Westcott and the Board of Trustees of the Polytechnic Institute of New York University, Defendants. No. 19117/2012. March 5, 2015. Decision/Order Peter P. Sweeney, Judge. *1 Motion Date: July 7, 2014 Motion Cal. No.:44 The following papers numbered 1 to 3 were read on this motion: Papers: Numbered Notice of Motion/Order to Show Cause Affidavits/Affirmations/Exhibits 1 Answering Affirmations/Affidavits/Exhibits 2 Reply Affirmations/Affidavits/Exhibits 3 Other Upon the foregoing papers, the motion is decided as follows: The defendants had previously moved to dismiss all causes of action alleged in plaintiffs complaint pursuant to CPLR 3211(a) (5) and (a)(7). By order dated August 20, 2013, the court granted the motion, in part, and dismissed all causes of action alleged in the complaint except the cause of action premised upon defendants' alleged failure to pay plaintiff for services rendered in connection with creating, designing, printing and distributing recruitment materials, including a large color poster. The court granted defendants leave to renew its motion insofar as it sought dismissal of this cause of action once defendants ascertain when this cause of action accrued. By notice of motion dated October 17, 2013, the defendant renewed its motion to dismiss the remaining cause of action. By decision and order dated May 2, 2014, the court converted the motion into a motion for summary judgment pursuant to CPLR 3211(c). The parties were given an opportunity to submit additional papers in support of their respective positions. The court will now address the motion. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 FILED: NASSAU COUNTY CLERK 08/03/2022 12:13 PM INDEX NO. 617340/2019 NYSCEF Keles v.NO. DOC. Hultin, 1322015 WL 13035454 (2015) RECEIVED NYSCEF: 08/03/2022 Generally, any Statute of Limitations begins to run when a cause of action accrues (CPLR 203[a]). In New York, a breach of contract cause of action accrues at the time of the breach ( Edlux Constr. Corp. v. State of New York, 252 App.Div. 373, 374, 300 N.Y.S. 509, affd. 277 N.Y. 635, 14 N.E.2d 197, see also, Kassner & Co. v. City of New York, 46 N.Y.2d 544, 550, 415 N.Y.S.2d 785, 389 N.E.2d 99). The limitations period for a breach of contract action is six years (CPLR 213(2)). Here, the affidavitof Sunil Kumar, which was submitted by the defendants in support of the motion, and sufficiently demonstrates that the plaintiff commenced this action well after the expiration of the six year limitations period. Plaintiff failed to raise a triable issue of fact. Plaintiff maintains that defendants used the posters he created within the six-year period prior to the commencement of the action and argues that the six year limitations period began to run each time defendants used the posters. The Court rejects this argument. While it is true that where a contract calls for continuing performance, a cause of action for breach of contract ordinarily accrues and the limitations period begins to run upon breach (City of Syracuse v. Loomis Armored US, LLC, 2012, 900 F.Supp.2d 274), there are no allegations in the complaint that the contract required the defendants to pay the plaintiff each time the posters were used. The court has considered plaintiff's other arguments in opposition and find them to be without merit. Accordingly, it is hereby ORDERED that defendants' motion to dismiss the remaining cause of action is granted. *2 This constitutes the decision and order of the Court. Dated: January 7, 2015 <> PETER P SWEENEY, A.J.S.C. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2