Niagara Recycling, Inc. v. Sevenson Environmental Services, Inc.

—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; nor does plaintiff contend that any subsequent action by defendant extended or reaffirmed defendant’s contractual obligation. (Appeal from Judgment and Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Pine, J. P., Wisner, Hurl-butt, Scudder and Callahan, JJ.