East Midtown Plaza Housing Co. v. City of New York , 631 N.Y.S.2d 38 ( 1995 )

—Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about March 2,1994, which granted defendants Cauldwell’s and Kreisler’s motions to dismiss the complaint against them, unanimously affirmed, without costs.

The causes of action in this defective construction case grounded in breach of contract, breach of warranty and negligence are all time-barred since they were instituted more than six years after the completion of the construction (see, Cabrini Med. Ctr. v Desina, 64 NY2d 1059; City School Dist. v Stubbins & Assocs., 85 NY2d 535). While plaintiff attempts to invoke the doctrine of equitable estoppel to revive its stale claims, that extraordinary remedy is only applicable in circumstances where there is evidence that plaintiff was lulled into inaction by defendant in order to allow the statute of limitations to lapse (see, Bayridge Air Rights v Blitman Constr. Corp., 160 AD2d 589, affd 80 NY2d 777). There is no such evidence here. Indeed, plaintiff’s reliance upon a requisition form (one of many used throughout the project), which was required by the contract in order for defendants to be paid for their services, and which recites, allegedly falsely, that the work has been completed pursuant to the terms of the contract, does not qualify, under the circumstances, as a representation intended to prevent plaintiff from timely instituting suit (see, Okie v Village of Hamburg, 196 AD2d 228, 231). Moreover, in order for the equitable estoppel doctrine to apply, a fiduciary relationship must exist between the parties, a relationship which does not obtain here (Cabrini Med. Ctr. v Desina, supra, at 1062). Finally, plaintiffs claims of fraud fail as they arise out of the same facts and circumstances upon which the claims for breach of contract are based (Mastropieri v Solmar Constr. Co., 159 AD2d 698). Concur—Rosenberger, J. P., Ellerin, Kupferman, Tom and Mazzarelli, JJ.