
    [624 NYS2d 738]
    Westminister Properties, Ltd., Respondent-Appellant, v Douglas A. Kass et al., Appellants-Respondents.
    Supreme Court, Appellate Term, First Department,
    February 1, 1995
    
      APPEARANCES OF COUNSEL
    
      Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P. C., New York City (Jeffrey R. Metz of counsel), for respondent-appellant. Stamell, Tobacco & Schager, New York City (Jared B. Stamell of counsel), for appellants-respondents.
   OPINION OF THE COURT

Per Curiam.

Order dated April 2, 1993 reversed, with $10 costs and tenants’ cross motion for summary judgment dismissing the petition as time barred is granted.

Appeal from the order dated May 20, 1993 dismissed, without costs.

Landlord commenced this summary holdover proceeding in or about December 1992, on the ground that tenants had breached the "no alteration” provision of the parties’ rent-stabilized lease and, hence, violated a substantial obligation of their tenancy. In seeking summary judgment dismissing the petition, tenants argued, inter alla, that landlord’s claim was barred under either the six-year Statute of Limitations governing contract obligations (CPLR 213 [2]) or the residuary six-year Statute of Limitations for "an action for which no limitation is specifically prescribed by law” (CPLR 213 [1]). The court below denied the parties’ respective motions for summary judgment and both parties have appealed.

In applying a Statute of Limitations, we have been instructed to look to the reality and essence of the action (Goldberg v Sitomer, Sitomer & Porges, 97 AD2d 114, 117). The holdover petition pleads tenants’ violation of a specified lease provision. Since the underlying misconduct alleged is a breach of contract, the six-year limitations period applicable to actions upon contract (CPLR 213 [2]) should apply. We agree with tenants that landlord’s claim accrued no later than December 1985, when tenants’ extensive and prolonged renovations, performed over the course of several months, were completed. Measured from that accrued date, this summary proceeding commenced in or about December 1992 was time barred and should have been dismissed. While landlord claims to have been ignorant of the wrong, the running of the statute in a breach of contract action may not be postponed from the time of the breach until actual discovery of the wrong or injury (see, Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 403-404). Nor could landlord prolong the Statute of Limitations by its delay in serving a notice to cure, since the general rule is that "the time within which the action must be commenced shall be computed from the time when the right to make the demand is complete” (CPLR 206 [a]), i.e., when the wrong is committed, not discovered. (See, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C206:l, at 348.) We disagree with the legally unsupported rationale of the dissent that the 10-day notice to cure is a substantive element of this breach of contract action. It is a procedural element of landlord’s prima facie case similar to a demand in a nonpayment proceeding.

Alternatively, even if it be concluded that this proceeding falls within that category of actions for which no period of limitations has been specifically prescribed (CPLR 213 [1]), the six-year statute would bar this proceeding.

Finally, no basis exists to equitably estop the tenants from asserting the Statute of Limitations, absent facts that tenants engaged in affirmative wrongdoing or concealment and that such conduct was responsible for landlord’s delay in bringing this holdover proceeding (General Obligations Law § 17-103 [4] [b]; see also, Simcuski v Saeli, 44 NY2d 442, 448-449; General Stencils v Chiappa, 18 NY2d 125, 127-128; DeGori v Long Is. R. R., 202 AD2d 549). We note that the purpose of all Statutes of Limitations is to "[put] disputes to rest and [require] suits to be brought while the evidence is fresh and available” (Continental Metals Corp. v Municipal Warehouse Co., 92 AD2d 477, 478 [Samuel J. Silverman, J., dissenting]; see also, Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429-430).

Parness, J. P.

(dissenting). I would affirm Civil Court’s orders which, inter alla, struck the affirmative defense of the Statute of Limitations. Where a demand and refusal is a substantive and not merely procedural element of a cause of action, the Statute of Limitations does not begin to run until after the demand and failure to perform (1 Weinstein-KornMiller, NY Civ Prac ¡[ 206.01; see, Menzel v List, 22 AD2d 647; Frigi-Griffin, Inc. v Leeds, 52 AD2d 805, 806; compare, CPLR 206). In a summary proceeding brought to recover possession upon the ground that the tenant has violated a substantial obligation of a stabilized tenancy, the landlord is required to prove, as part of its prima facie case, that a notice to cure the violation was served and that tenant failed to cure within 10 days (Rent Stabilization Code [9 NYCRR] § 2524.3 [a]). It is not merely a breach of the lease which must be proven, but a breach of the lease which continued after landlord’s demand that it stop. Indeed, a termination notice (Rent Stabilization Code [9 NYCRR] § 2524.2) may not even be served until after expiration of the cure period. Under such circumstances, a possessory cause of action does not accrue and the statute commence to run until service of a notice to cure, and the holdover proceeding was therefore timely.

Adoption of the rule espoused by my colleagues will effectively encourage tenants to make substantial prohibited alterations without consent in premises over which they exercise exclusive dominion and control, in the hope that the passage of time will validate their surreptitious conduct. Landlord’s managing agent affirms that the alterations complained of were not discovered until an inspection of the premises in September 1992, a date when any remedy was time barred under the majority’s construction. Such a result is neither required by law nor desirable as a matter of policy. This is not a traditional contract action for damages. While there exists an underlying lease, the provisions of the Rent Stabilization Law and Code are impressed upon its terms and govern the rights and obligations of the parties. Tenants, who enjoy eviction protection under a statutory tenancy, should not be free to avoid those portions of the regulatory scheme which confer upon owners the right to make improvements within individual apartments and to obtain rent increases therefor (see generally, Rent Stabilization Code [9 NYCRR] § 2522.4). These considerations further militate in favor of applying a rule of discovery to the conduct complained of.

Tenants’ interests will be adequately protected by their defenses of waiver, loches and estoppel, which have been preserved in the orders appealed from and which, if established at a trial, would defeat the proceeding.

Miller and McCooe, JJ., concur; Parness, J. P., dissents in a separate memorandum.  