Haller v. 360 Riverside Owners Corp. , 710 N.Y.S.2d 821 ( 2000 )

Order, Supreme Court, New York County (Paula Omansky, J.), entered December 17, 1999, which, in this declaratory judgment action, granted defendant’s motion to dismiss plaintiffs’ complaint, unanimously modified, on the law, to declare in defendant cooperative corporation’s favor that plaintiff cooperative corporation shareholders may not avoid payment of defendant’s major capital improvement assessment upon the grounds advanced in this action, and otherwise affirmed, without costs.

The claim upon which plaintiffs’ asserted right to avoid payment of major capital improvement assessments levied by defendant cooperative corporation is premised, namely, that there were misrepresentations as to the need for major capital improvements made by defendant in the contract pursuant to which plaintiffs purchased their shares in defendant cooperative corporation from defendant, is time-barred by the applicable one-year limitation period contained in the contract of sale, and such claim is not revived by CPLR 203 (d) since it is asserted in the present context neither as a counterclaim nor a defense. Moreover, inasmuch as. certain claims for unpaid building improvement assessments that may be asserted by defendant against plaintiffs relate to defendant’s right to performance under the terms of the proprietary lease, any counterclaims arising out of the negotiation and events leading up to the execution of the lease, including those arising from an alleged breach of provisions or misrepresentations contained in the contract of sale, would not be revived pursuant to CPLR 203 (d) (see, Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788, 791-792; Levy v Kendricks, 170 AD2d 387). We modify only to declare explicitly what is implied by Supreme Court’s disposition (see, Lanza v Wagner, 11 NY2d 317, cert denied 371 US 901).

We have considered plaintiffs’ remaining contentions and find them to be unavailing. Concur — Torn, J. P., Wallach, Rubin, Saxe and Buckley, JJ.