        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

259
CA 14-01722
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


JOHN C. RICH, DOING BUSINESS AS RICH HOME
BUILDING AND DEVELOPMENT, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GREG ORLANDO AND LISA ORLANDO,
DEFENDANTS-APPELLANTS.


WILLIAM M. BORRILL, NEW HARTFORD, FOR DEFENDANTS-APPELLANTS.

RALPH W. FUSCO, UTICA, FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Oneida County
(Patrick F. MacRae, J.), entered January 24, 2014. The judgment
dismissed the first counterclaim stated in defendants’ answer.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this breach of contract action
to recover the unpaid balance allegedly due from defendants under a
custom home building contract. In their answer, defendants asserted,
inter alia, a counterclaim for breach of the housing merchant implied
warranty (first counterclaim), and defendants now appeal from a
judgment dismissing that counterclaim. On a prior appeal, we granted
those parts of plaintiff’s summary judgment motion seeking dismissal
of two other counterclaims, and we remitted the matter to Supreme
Court for a trial to determine the last date on which plaintiff
performed repairs on defendants’ home with respect to each defect
raised by defendants in the first counterclaim, thereby allowing the
court to determine whether defendants raised the first counterclaim
within the applicable limitations period (Rich v Orlando, 108 AD3d
1039). On remittal, and insofar as relevant to this appeal, the court
concluded that plaintiff had last performed repairs on the alleged
defect on the back deck of defendants’ home in June 2006, almost three
years prior to the filing of the complaint. The court therefore
dismissed the first counterclaim as time-barred under General Business
Law § 777-a (4) (b).

     We reject defendants’ contention that the doctrine of equitable
estoppel should preclude plaintiff from asserting the statute of
limitations as a defense. The doctrine of equitable estoppel requires
“three elements on the part of the party estopped: (1) conduct which
is calculated to convey the impression that the facts are otherwise
                                 -2-                           259
                                                         CA 14-01722

than, and inconsistent with, those which the party subsequently
attempts to assert; (2) intent that such conduct (representation) will
be acted upon; and (3) knowledge, actual or constructive, of the true
facts. The elements pertaining to the party asserting estoppel are
(1) lack of knowledge of the true facts; (2) good faith reliance; and
(3) a change of position” (Holm v C.M.P. Sheet Metal, 89 AD2d 229,
234-235; see Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553).
Here, the evidence established that plaintiff did not conduct any
repairs to the alleged defects to the back deck area of the house
after June 2006, despite the continuance of leaking water in that
area. Although both defendants testified at trial that they continued
to notify plaintiff of leaks after the June 2006 repairs, neither
defendant testified that plaintiff made any representations that he
would correct the defect. To the contrary, the evidence established
that plaintiff informed defendants that the water leak problem had
been fixed, but that defendants knew that such assertion was false.
Thus, there is no evidence that defendants “lack[ed] knowledge of the
true facts,” or that they relied in good faith on plaintiff’s
statements that the problem had been fixed, and the “essential
element” of detrimental reliance “is lacking on the record before us”
(Holm, 89 AD2d at 235).

     We reject defendants’ further contention that applying the
statute of limitations to bar their first counterclaim is against
public policy. The application of the statute of limitations in this
matter is consistent with its purpose, which is “to afford protection
to [a party] against defending stale claims after a reasonable period
of time ha[s] elapsed during which a person of ordinary diligence
would [have brought] an action” (Flanagan v Mount Eden Gen. Hosp., 24
NY2d 427, 429; see Matter of Depczynski v Adsco/Farrar & Trefts, 84
NY2d 593, 596-597).




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
