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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: July 18, 2016

Continuing Violation Doctrine Not Applicable Where Plaintiff Suffers Discrete Harms

On June 23, 2016, Justice Bransten of the New York County Commercial Division issued a decision in ICP Asset Mgt. LLC v. Triaxx Prime CDO 2006-1 Ltd., 2016 NY Slip Op. 31241(U), dismissing a breach of contract claim on statute of limitations grounds, explaining:

Defendants concede that the breach of contract counterclaim is subject to a six year statute of limitations and do not dispute that the breaches that they allege occurred more than six years before they interposed their counterclaims. Nevertheless, defendants try to save their breach of contract counterclaim by claiming that the transactions constitute a continuous course of breaching conduct, such that a single transaction, allegedly occurring within the six-year period on October 28, 2008, tolls the statute of limitations on the earlier claims.

However, the counterclaims here do not allege a continuing breach, but rather are a series of discrete breaches. The continuing violation doctrine does not apply where, as here, plaintiffs suffered discrete, actionable harms each time they paid too much or received too little on a transaction.

(Internal quotations and citations omitted).

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