Giordano v. Westchester County Department of Parks, Recreation & Conservation

In an action to recover damages, inter alia, for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Barone, J.), dated August 22, 2005, which granted the defendant’s motion to dismiss the complaint as time-barred and denied his cross motion for leave to amend the caption and the complaint, and to consolidate the action with other actions. Ordered that the order is affirmed, with costs. Since the plaintiff failed to demonstrate that the 2003 payment in the sum of $1,890.42 was a partial payment constituí [898] ing an acknowledgment of debt, of which the amount claimed in this action was a part (see Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d 516 [1976]), the applicable four-year period of limitations (see UCC 2-725) was not tolled and the Supreme Court properly granted the defendant’s motion to dismiss the complaint as time-barred (see Lew Morris Demolition Co. v Board of Educ. of City of N.Y., supra; Stern v Stern Metals, Inc., 22 AD3d 567 [2005]). The plaintiff’s remaining contentions either have been rendered academic or are without merit. Prudenti, P.J., Adams, Rivera and Lifson, JJ., concur.