2009 NY Slip Op 50068(U)


Mount Vernon City Court.

Decided January 12, 2009.

Attorney(s) appearing for the Case

Michael H. Kane, New York, NY, Attorney for Plaintiff.

Robert G. Schneider, Yonkers, NY, Attorney for Defendant.


In this breach of contract action by plaintiff for payment of consulting services rendered, defendant moves for summary judgment, seeking dismissal of the complaint as time-barred by the statute of limitations pursuant to CPLR §213. Plaintiff opposes the motion.

Defendant contends that, pursuant to CPLR §213, legal action must be commenced within six years from the date of the cause of action. Both parties agree that the action commenced in November 2006 (the parties cite differing dates in November; however, said difference is irrelevant to the dispute). What is under dispute is the date that plaintiff ceased performing services for defendant.

Defendant claims that plaintiff ceased rendering professional services to defendant in May, 2000. As evidence, defendant submits an e-mail from May 1, 2000, from defendant to plaintiff, in which defendant terminated their business relationship. Defendant also submitted plaintiff's response, dated May 19, 2000. That letter expresses plaintiff's disappointment at defendant's decision to terminate their business relationship. In the letter, plaintiff refers to some 55 to 60 hours that he worked for defendant, from 1999 to May of 2000. He sets the value of those hours at $13,750 (at $250.00 per hour), and separately, provides a limited breakdown of the hours and the approximate months and year in which plaintiff rendered his services. Defendant submitted one additional letter, dated July 24, 2001. That letter, from plaintiff to defendant, was in response to defendant's request for a copy of the May 2000 bill, but cited no new work.

In opposition to the motion, plaintiff claims that he continued to perform additional services, on defendant corporation's behalf, well into 2001. As proof, he submits an affidavit setting forth a list of nine conversations and meetings he held with specific individuals and entities on defendant's behalf. However, plaintiff left the dates vague, cited as occurring during a period of various months, seasons or, more generally, after May 2000 and during an unspecified time frame in 2001. Occasionally, plaintiff indicated that a meeting occurred during a two month time frame, but provided no more specifics. Plaintiff submitted no direct or documentary evidence such as time sheets, notes from meeting, daily schedules, phone bills or other documentary substantiation of his claimed work in the second half of 2000 and throughout 2001.

It is well settled that in order to obtain summary judgment, the movant must establish a cause of action or defense sufficient to warrant a court's directing judgment in its favor as a matter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980) citing Friends of Animals v. Associated Furs Mfrs., 46 N.Y.2d 1065, 1067-68 (1979); CPLR §3212 (b). The party opposing the motion must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967 (1988); McGivney v. Liberty Mutual Fire Ins. Co., 305 A.D.2d 559, 560 (2d Dept. 2003). A self-serving, unsubstantiated affidavit, by the submitting party, is insufficient to establish the requisite oppositional proof. Wright v. South Nassau Communities Hosp. 254 A.D.2d 277 (2d Dept. 1998).

In Weinreich v. A.H. Robins Co., 96 A.D.2d 860 (2d Dept. 1983) the appellate court held, in assessing the merit of a summary judgment motion, that while the standard of proof for the opposing party is more flexible than the standard for the movant, absent evidentiary proof in admissible form, the opponent must at least proffer a reasonable excuse for the failure to present such evidence. Here, plaintiff proffered neither evidentiary proof of his labor nor a reasonable excuse for the absence of such evidence. Moreover, an oppositional affidavit may constitute sufficient proof to survive summary judgment only when "based on documentary evidence." Nuclear Facilities Inc., v. Advance Relocation and Storage, 173 A.D.2d 802 (2d Dept. 1991). Here, plaintiff's affidavit fails precisely due to the lack of supporting documentary evidence for the contested time period.

Absent sufficient specific evidence to support a contested issue or material issues of fact, or a sufficient excuse for the lack thereof (specifically whether the parties had a clear agreement about their professional relationship), the court finds that no trial is warranted and defendant's motion for summary judgment is granted.

This constitutes the court's decision and order.


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