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Rodriguez v. Central Parking System of New York10/18/2005
be ignored that over the course of the last thirty years the Court of Appeals has consistently refused to apply a shortened negligence statute of limitations period to a contract claim seeking contract damages on a claim for property damage. Indeed, starting no later than six years after the Appellate Term decision urged to be binding, the underpinnings of that rule were rejected (Paver & Wildfoerster v. Catholic High School Assn., 38 NY2d 669, 676 , "if the claim ... is substantially related to the subject matter of the substantive agreement ... it will not be barred merely because it also would permit recovery in a tort action at law"). That rejection has been repeatedly reiterated over the years (Steiner v. Wennin. 43 NY2d 831, 832 , "The complaint ... stated a good cause of action in contract and sought no greater recovery than would be allowed under the law of damages with respect to contract liability. It was accordingly error to apply the three-year Statute of Limitations"; Sears, Roebuck & Co. v Enco Assoc., 43 NY2d 389, 396 , where there is a contract, "the selection of the applicable Statute of Limitations is related to the remedy sought"; Video Corp. of Amer. v. Flatto Assoc., 58 NY2d 1026,1028 , "an action for failure to exercise due care in the performance of a contract insofar as it seeks recovery for damages to property or pecuniary interests recoverable in a contract action is governed by the six-year contract Statute of Limitations [CPLR 213, subd 2]. To the extent that [older precedents] are to the contrary they should not be followed"; Loengard v. Santa Fe Industries, Inc., 70 NY2d 262, 266 , "the choice of the applicable Statute of Limitations depends on the substantive remedy which the plaintiff seeks"). And, except to the extent that certain non-medical malpractice actions are now limited to a global three-year limitations period (CPLR 214 ), a plaintiff continues to have the choice of asserting a contract claim with its six year statute of limitations where the parties are bound by a contract and only contract damages are sought (Chase Scientific Research, Inc. v. NIA Group, Inc., 96 NY2d 20, 31 ).
The change in the law represented by this line of cases was summarized in Baratta v. Kozlowski, 94 AD2d 454, 461 (2d Dept. 1983):
"In resolving conflicts between the tort and contract limitations periods, the judiciary historically has looked toward the 'essence of the action', a rule primarily applied to personal injury lawsuits, but sometimes applied to pecuniary interest cases as well. In recent times, however, the Court of Appeals has disavowed blanket application of the essence of the action rule beyond personal injury actions and recognized that different policy considerations are involved in actions for damages to property or pecuniary interests."
Opining that "a wrongdoer should not be permitted to allege his own wrong for the purpose of defeating an action on the basis of the Statute of Limitations", the Second Department applied a six-year limitations period to the contract-based claim to the extent that it sought contract damages (94 AD2d at 463; see also, for a similar analysis Frank Management, Inc. v. Weber, 145 Misc 2d 995, 999 [Sup. Ct. NY Co. 1989, Lehner, J.]),
This change in the law has been recognized by modern legal authorities. In words directly applicable to the facts presented in this case, Professor David D. Siegel addresses the statute of limitations as applied to a complaint with multiple theories and states in his NY Prac. ยง 37 (4th ed.), "The same conduct will sometimes constitute both a breach of contract and the tort of conversion. The conversion claim has only a three-year period; adding a count in contract
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