Affordable Hous. Assoc., Inc. v. Town of Brookhaven, Index No. 34138/2010, 7/29/15 (Emerson, J.)

Contract; Breach of Contract; Continuing-Wrong Doctrine.

By Roshnee Sukhnandan | Staff Writer

Defendant hired plaintiff to assist in developing wireless telecommunications towers on defendant’s properties. The parties entered into a written contract in which the plaintiff agreed to identify specific locations on the defendant’s properties where telecommunication towers could be built, to construct such towers, and to lease them to telecommunications carriers. The parties agreed that the monthly revenue would be split between the plaintiff and defendant 60/40 during the initial five-year term of the contract and two subsequent five-year renewal terms and 50/50 during the third five-year renewal term. Additional renewals would be at the defendant’s sole option. Plaintiff submitted five sites to defendant on where they could construct telecommunication towers and identified telecommunication carriers that would lease the towers.

Shortly thereafter, the defendant informed plaintiff that another company, who was also in the business of developing wireless communication sites and was the plaintiff’s competitor, had inquired about developing telecommunication towers on two of the same sites submitted by the plaintiff to the defendant. Subsequently, the defendant contracted to construct those two wireless communication towers with the other company instead of with plaintiff.

Plaintiff alleges defendant’s contract with the other company caused plaintiff to lose its share of the rental revenues therefrom. The complaint asserts a cause of action for breach of contract.

The continuing wrong doctrine tolls the running of the statute of limitations to the date of the commission of the last wrongful act when there is a series of continuing wrongs. The Court applied the continuing wrong doctrine and found that the plaintiff’s breach of contract claim accrued when the defendant failed to turn over to the plaintiff its share of the rental revenues from the two sites in question and that a new breach occurred for statute of limitations purposes each time the defendant failed to make a required monthly payment to plaintiff. Therefore, the court found that the plaintiff’s breach of contract claim commenced within the statute of limitations and declined to dismiss the claim as time-barred.

 Affordable Hous. Assoc., Inc. v. Town of Brookhaven, Index No. 34138/2010, 7/29/15 (Emerson, J.).

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