On February 9, 2024, Justice Borrok of the New York County Commercial Division issued a decision in HOV Servs., Inc. v. ASG Techs. Group, Inc., 2024 NY Slip Op. 30456(U), holding that the continuing wrong doctrine defeated a statute of limitations defense, explaining:
HOV’s motion (Mtn. Seq. No. 017) to exclude evidence regarding Overlapping Customers without new agreements executed during the limitations period is denied.
The Appellate Decision is instructive on this point:
The motion court appropriately limited defendant’s counterclaim for breach of the overlapping customer restriction to conduct arising within the two years preceding defendant’s assertion of the same counterclaim in a prior federal action. Although this claim was subject to a two-year contractual limitation provision, the overlapping customer restriction constituted a continuing duty, which was breached anew at least each time a new contract was entered into, even if with the same overlapping customer.
As such, the continuing wrong doctrine does apply to this case. Each time HOV provided services during the relevant period to one of its customers in violation of the Agreement, an independently actionable claim with its own limitations period arose, but that does not extend the period for claims outside of the limitations period (i.e., before November 30, 2016). Ganzi v Ganzi (183 AD3d 433,434 [1st Dept 2020]) does not change this result- that case does not stand for the proposition that an additional contract or re-execution is necessary for the continuing wrong doctrine to apply. Thus, the motion is denied.
(Internal citations omitted).