Video Corp. of America v. Frederick Flatto Associates, Inc.
N.Y.
Video Corporation of America, Formerly Known as Teletronics International, Inc., Appellant-Respondent, v Frederick Flatto Associates, Inc., Respondent-Appellant and Third-Party Plaintiff. American Guarantee and Liability Insurance Company, Third-Party Defendant.
Attorneys
- APPEARANCES OF COUNSEL
- Andrew C. Jacobson for appellant-respondent.
- Andrew R. Simmonds and Robert E. Meshel for respondent-appellant.
majority
Memorandum.
The order of the Appellate Division should be modified to deny the motion to dismiss the complaint and to reinstate the complaint in its entirety and, as so modified, should be affirmed, with costs to plaintiff.
Justice Sandler’s analysis (85 AD2d 448, 457) of our holding in Sears, Roebuck & Co. v Enco Assoc. (43 NY2d 389; see, also, Steiner v Wenning, 43 NY2d 831; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669) is correct: 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 Gilbert Props. v Millstein (33 NY2d 857) and Adler & Topal v Exclusive Envelope Corp. (84 AD2d 365) are to the contrary they should not be followed.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur.
Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to plaintiff. Question certified answered in the negative.
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