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NIAGARA RECYCLING, INC. v. SEVENSON ENVIRONMENTAL SERVICES, INC.

265 A.D.2d 852 (1999)

695 N.Y.S.2d 652

NIAGARA RECYCLING, INC., Appellant, v. SEVENSON ENVIRONMENTAL SERVICES, INC., Formerly Known as SEVENSON CONSTRUCTION CO., INC., Also Known as SEVENSON CONSTRUCTION CORP., INC., Respondent.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided October 1, 1999.

Judgment and order unanimously affirmed without costs.

Memorandum:

Plaintiff commenced this action for breach of a contract in 1997 based upon defendant's alleged failure to replace 27,000 cubic feet of clay "on or before July 15, 1988". Supreme Court properly dismissed the action as time-barred (see, CPLR 213 [2]). Plaintiff's reliance upon CPLR 206 (a) (2) is misplaced. That section is not applicable because the time for performance was fixed by contract...

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