Peekskill Housing Authority v. Montrose Construction Co.

— In an action to recover damages for breach of contract, defendants appeal from an order of the Supreme Court, Westchester County (Stolarik, J.), entered January 20, 1984, which denied their motion to dismiss the action, pursuant to CPLR 3211 (subd [a], par 5), as barred by the Statute of Limitations.

Order affirmed, with costs.

The record shows that although title passed to plaintiff in 1973, certain items of work were to be completed by defendant Montrose Construction Co., Inc. so that a permanent certificate of occupancy could be obtained. A major item needing remedial work was a retaining wall, which despite various attempts *1033never met with the city inspector’s approval. Montrose last worked on that wall in November, 1977, and, subsequently in August, 1979, it refused to do any further work on the wall. Under the facts of this case, the cause of action did not accrue until at least November, 1977, or as late as August, 1979 (see Matter of Pigott Constr. Int. v Rochester Inst. of Technology, 84 AD2d 679). It is unnecessary to determine the precise date on this motion because, in either event, the commencement of the instant action in August, 1982, was timely.

In light of this conclusion, the issue of estoppel is not relevant. Brown, J. P., Niehoff, Rubin and Eiber, JJ., concur.