Manufacturers & Traders Trust Co. v. Schiferle

— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In his answer to this complaint seeking foreclosure of a mortgage, defendant raised six counterclaims. Plaintiff subsequently moved for summary judgment on the complaint and for dismissal of the counterclaims. The court properly denied the motion for judgment on the complaint, and for judgment dismissing the first two counterclaims. Numerous factual issues were raised regarding fraud, misrepresentation, fraudulent concealment and fraud in the inducement sufficient to preclude summary judgment (see, Trepuk v Frank, 44 NY2d 723). The court erred, however, by failing to dismiss counterclaims numbered three through six. The third, fifth and sixth counterclaims sought damages based upon an alleged breach of contract and all of the acts giving rise to a breach were alleged to have occurred on or before September 1978. Since the action was commenced in 1985, these counterclaims were barred by the six-year Statute of Limitations (CPLR 213 [2]). The fourth counterclaim sought damages for intentional interference with contractual relations and was likewise based on conduct occurring on or before September 1978. That counterclaim was barred by the three-year Statute of Limitations (CPLR 214 [4]; Kartiganer Assocs. v Town of New Windsor, 108 AD2d 898, 899; see also, Williams v Arpie, 56 AD2d 689, 690, affd 44 NY2d 689). Accordingly, we modify the order to grant partial summary judgment dismissing the third through sixth counterclaims asserted in defendant’s answer. (Appeal from order of Supreme Court, Erie County, McGowan, J. — summary judgment.) Present — Dillon, P. J., Callahan, Green, Pine and Balio, JJ.