On May 11, 2022, Justice Masley of the New York County Commercial Division issued a decision in Irma C. Pollack LLC v. OP Dev. Corp., 2022 NY Slip Op. 31541(U), holding that where a defendant had a continuing duty to act, the statute of limitations for breaching that duty starts anew each day the defendant is in breach, explaining:
Where a contract provides for continuing performance over a period of time, each breach may begin the running of the statute anew such that accrual occurs continuously and plaintiffs may assert claims for damages occurring up to six years prior
to the filing of the suit. Under the Lease, OP had a continuing obligation to maintain the Property in good order and condition and comply with all laws. Any breach of those lease provisions are not referable exclusively to the day the original wrong was committed; rather, a cause of action accrues anew every day, and for each injury. In regard, to any alleged breaches based on violations of the law, the rule that a cause of action accrues anew every day, or for each injury, applies whenever one unlawfully produces some condition which is not necessarily of a permanent character, and which results in intermittent and recurring injuries to another. Like the maintenance of a continuous nuisance, such conduct is not immune from suit once it has continued past the limitations period.As to whether the breach of contract claim for a failure to investigate is timely, the OP Defendants did not address this claim in their moving papers. To the extent it was addressed in their reply, there is no law cited to support their position. Accordingly, the OP Defendants’ motion to dismiss this claim as time-barred is denied without prejudice.
(Internal quotations and citations omitted).