

Gleich v Haenel (2015 NY Slip Op 01607)





Gleich v Haenel


2015 NY Slip Op 01607


Decided on February 25, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 25, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
BETSY BARROS, JJ.


2014-00838
2014-01824
 (Index No. 10266/12)

[*1]Stephan B. Gleich, appellant, 
vStephen J. Haenel, respondent, et al., defendant.


Gleich, Siegel & Farkas LLP, Great Neck, N.Y. (Lawrence W. Farkas and Lara P. Emouna of counsel), for appellant.
Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale, N.Y. (Danielle G. Gatto of counsel), for respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated October 17, 2013, as, upon renewal, adhered to a determination in an order dated July 1, 2013, making certain findings, and (2) from an order of the same court dated December 16, 2013, which granted the motion of the defendant Stephen J. Haenel for summary judgment dismissing, as time-barred, the fifth cause of action insofar as asserted against him.
ORDERED that the appeal from the order dated October 17, 2013, is dismissed; and it is further,
ORDERED that the order dated December 16, 2013, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondent.
The plaintiff appeals from so much of an order dated October 17, 2013, as, upon renewal, adhered to a determination in an order dated July 1, 2013, making certain findings in connection with the denial of that branch of the motion of the defendant Stephen J. Haenel which was to dismiss the fifth cause of action insofar as asserted against him. That appeal must be dismissed, both because the plaintiff is not aggrieved by that portion of the order dated October 17, 2013 (see George Tsunis Real Estate, Inc. v Benedict, 116 AD3d 1002), and because that appeal has been rendered academic in light of our determination on the appeal from the order dated December 16, 2013.
The plaintiff's fifth cause of action sought to recover damages for unjust enrichment. Contrary to the plaintiff's contention, the Supreme Court properly granted the motion of the defendant Stephen J. Haenel for summary judgment dismissing, as time-barred, the fifth cause of action insofar as asserted against him (see Chi Kee Pang v Synlyco, Ltd., 89 AD3d 976; EMD Constr. Corp. v New York City Dept. of Hous. Preserv. & Dev., 70 AD3d 893). Haenel satisfied his [*2]burden of demonstrating, prima facie, that the time within which to assert the fifth cause of action had expired prior to the commencement of this action. The plaintiff failed to raise a triable issue of fact in opposition (see Farage v Ehrenberg, 124 AD3d 159; Matter of Scola, 118 AD3d 895).
The plaintiff's remaining contentions are without merit.
DILLON, J.P., DICKERSON, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


