Bernstein v. Kazemi & Co. , 633 N.Y.S.2d 788 ( 1995 )

—Order, Supreme Court, New York County (Herman Cahn, J.), entered March 1, 1995, which denied plaintiff’s motion for summary judgment on the original complaint and for a default judgment on the supplemental complaint and granted defendants’ cross motion to dismiss, unanimously affirmed, without costs. Appeal from an order of the same court and Justice, entered June 19, 1995, which denied plaintiff’s motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable order.

The IAS Court properly granted defendants’ cross motion to dismiss the complaint since the record fails to establish the existence of an enforceable storage contract, any purported oral modification of which would be barred by the Statute of Frauds (General Obligations Law § 15-301 [1]; see, Columbia Broadcasting Sys. v Roskin Distribs., 31 AD2d 22, 25, ajfd 28 NY2d 559). Moreover, the causes of action alleged are barred by the applicable Statutes of Limitations (CPLR 206; 214 [3]).

The second verified complaint, which sought to add seven new causes of action pertaining to events which allegedly occurred after service of the original complaint, was properly designated a supplemental complaint (CPLR 3025 [b]). Plaintiff’s motion for a default judgment thereon was properly denied since defendants promptly rejected the pleading in light of plaintiff’s failure to obtain prior leave of court or to obtain a court order compelling them to accept service (CPLR 3025 [b]; see, Carp v Marcus, 105 AD2d 584). Concur—Rosenberger, J. P., Ellerin, Rubin and Nardelli, JJ.