# Trott v. Merit Department Store

> Appellate Division of the Supreme Court of the State of New York · January 31, 1985 · 106 A.D.2d 158

URL: https://www.frixlaw.com/law-library/cases/5873266

## Case

- **Full name:** Charles Trott, Jr. v. Merit Department Store
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** January 31, 1985
- **Citations:** 106 A.D.2d 158; 484 N.Y.S.2d 827; 1985 N.Y. App. Div. LEXIS 48392
- **Precedential status:** Published
- **Opinion:** Concurrence by Sandler
- **Judges:** Asch, Sandler
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5873266

## Opinion text

Sandler, J. P.
(concurring).
I am in agreement with the conclusion reached by the court and much of the analysis in the court’s opinion. I do not, however, agree with that paragraph of the court’s opinion which refers to “the reality and essence of the cause of action” as controlling the applicable Statute of Limitations.
I should have thought that the approach to Statute of Limitations problems implicit in “the reality and essence” language had been definitively laid to rest by the Court of Appeals in Sears, Roebuck & Co. v Eneo Assoc. ( 43 NY2d 389 ), with the single partial exception suggested in that part of the Sears, Roebuck opinion quoted in this court’s opinion. As the Court of Appeals made quite clear in Sears, Roebuck, a complaint that adequately sets forth allegations entitling the plaintiff to relief on a theory not barred by the Statute of Limitations may not be dismissed on the basis that the allegations also set forth a theory of recovery that is barred by the Statute of Limitations, and which theory of recovery seems to the court to correspond more closely to the essence of the situation.
Fein, Lynch and Milonas, JJ., concur with Asch, J.; Sandler, J. P., concurs in a separate opinion.
Order, Supreme Court, New York County, entered on October 4, 1983, unanimously affirmed. Respondents shall recover of appellant one bill of $75 costs and disbursements of this appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5873266. Public record. Not legal advice.