Education Resources Institute, Inc. v. Piazza , 794 N.Y.S.2d 65 ( 2005 )

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Murphy, J.), entered October 29, 2002, which denied its motion for summary judgment and, upon searching the record, granted summary judgment to the defendant dismissing the complaint as time-barred.

Ordered that the order is affirmed, with costs.

The defendant is an attorney and resident of this state who, on or about April 1, 1992, executed a promissory note in the amount of $14,500 (hereinafter the first note) payable to the Ameritrust Company National Association (hereinafter Ameritrust), an Ohio entity, pursuant to its “Law Access” student loan program. On or about November 20, 1992, the defendant executed a second promissory note payable to Ameritrust in the amount of $15,000. Each note contained an Ohio choice-of-law provision.

On or about January 25, 1994, the defendant defaulted on the loans, and on July 12, 1994, Ameritrust assigned the notes to the plaintiff, a Massachusetts corporation. On or about August 23, 2001, the plaintiff commenced this action, inter alia, to recover damages for breach of contract. On October 21, 2002, the Supreme Court denied the plaintiffs motion for summary judgment and, upon searching the record, granted summary judgment to the defendant dismissing the complaint as time-barred.

“[Ujnder common-law rules matters of procedure are governed by the law of the forum” (Martin v Dierck Equip. Co., 43 NY2d 583, 588 [1978]). “On the other hand, matters of substantive law fall within the course chartered by choice of law analysis” (Tanges v Heidelberg N. Am., 93 NY2d 48, 53 [1999]). New York courts therefore apply contractual choice of law clauses only to substantive issues (see Sears, Roebuck & Co. v Enco Assoc., 43 NY2d 389, 397 [1977]).

Contrary to the plaintiffs contention, the Supreme Court correctly concluded that Ohio’s 15-year statute of limitations (see Ohio Rev Code § 2305.06) did not constitute a statute of repose and is not a substantive law for purposes of New York choice-of-law-analysis (see Tanges v Heidelberg N. Am., supra; Portale v Berkshire Condominium Owners Assoc., 1994 WL 568332, 1994 Ohio App LEXIS 4635 [8th Dist, Oct. 13, 1994]; Board of Educ. of Cleveland City School Dist. v URS Co., 1994 WL 520862, 1994 Ohio App LEXIS 4201 [8th Dist, Sept. 22, 1994]; Richards v Gold Circle Stores, Div. of Federated Dept. Stores, Inc., 28 Ohio App 3d 39, 501 NE2d 670 [1986]; Board of Educ. of Parma City School Dist. v Lesko Assoc., Architects, 1986 WL 697, 1986 Ohio App LEXIS 5231 [8th Dist, Jan. 9, 1986]). Thus, under New York choice-of-law rules, the Ohio statute is therefore inapplicable to this action which is governed by the six-year statute of limitations set forth in CPLR 213 (see Tanges, supra; cf. Blatz v Westinghouse Elec. Corp., 274 AD2d 491 [2000]). In addition, the plaintiff does not receive any benefit from CPLR 202, the “borrowing statute,” since “[w]hen a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitations periods of both New York and the jurisdiction where the cause of action accrued” (Global Fin. Corp. v Triare Corp., 93 NY2d 525, 528 [1999]; see Proforma Partners v Skadden Arps Slate Meagher & Flom, 280 AD2d 303 [2001]).

“In order that a part payment shall have the effect of tolling a time-limitation period, under the statute or pursuant to contract, it must be shown that there was a payment of a portion of an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder” (Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d 516, 521 [1976]). The circumstances of such a payment may be proven by extrinsic evidence (see Bernstein v Kaplan, 67 AD2d 897, 898 [1979]). For example, copies of cancelled checks and accompanying memoranda, the debtor’s books and records or an admission may demonstrate partial payment and a desire to remit the remaining sum (see Roth v Michelson, 55 NY2d 278, 282 [1982]; Costantini v Bimco Indus., 125 AD 2d 531 [1986]; Bernstein v Kaplan, supra at 898).

The purported payments relied upon by the plaintiff are, however, inadequate for this purpose. The computer-generated repayment ledger it submitted recites four reported payments, as to the first note alone, prior to the expiration of the applicable six-year statute of limitations. The initial two payments (i.e., $1,000 on January 24, 1995, and $100 on February 28, 1995) were allegedly received from the plaintiff’s collection agent, Zwicker & Associates. The remaining two payments (i.e., $35.41 each for interest payments on November 30, 1998, and December 30, 1998) are attributed to Hancock Bank. The record is devoid of any admissible evidence that these purported payments emanated from either the defendant, his authorized agent, or an account under his custody and control under circumstances from which an intent to pay the balance may be inferred. More specifically, computer printouts are admissible as business records if the data was stored in the normal course of business (see CPLR 4518 [a]; Ed Guth Realty v Gingold, 34 NY2d 440, 451-452 [1974]; Schneider Fuel Oil v DeGennaro, 238 AD2d 495 [1997]; Matter of Thomma, 232 AD2d 422 [1996]). The plaintiffs motion was, however, unsupported by an affidavit from an individual with personal knowledge as to the care and maintenance of the repayment ledger. Conversely, the defendant submitted an affidavit wherein he explicitly denied making the disputed payments and contested the accuracy of the ledger (cf. Guth, supra at 452). Nor did the plaintiff submit an affidavit from either a representative of its agent, Zwicker & Associates, or an officer or employee of Hancock Bank. Since, moreover, the disputed payments were reportedly received from third parties, this information was not uniquely within the defendant’s custody and control (see CPLR 3212 [f]). Accordingly, contrary to our dissenting colleagues, we conclude that the plaintiff presented insufficient evidence to raise a triable issue of fact as to whether the statute of limitations was tolled (see Shelley v Shelley, 299 AD2d 405, 406 [2002]; Saini v Cinelli Enters., 289 AD2d 770, 771 [2001]; cf. New York State Higher Educ. Servs. Corp. v Muson, 117 AD2d 947 [1986]). Adams, J.P., S. Miller and Smith, JJ., concur.