Opinion
No. 2021-05106 Index No. 609374/20
04-24-2024
Richard Buss, Appellant, v. Stryker Corporation, etc., et al., Respondents.
Law Offices of Nancy K. Galassi, P.C. (Thomas Torto, New York, NY, of counsel), for appellant. Gibbons P.C., New York, NY (Paul E. Asfendis of counsel), for respondent Stryker Corporation doing business as Stryker. Robert L. Hartford, Garden City, NY (James R. Pieret of counsel), for respondent Medpro US, Inc., doing business as Medpro.
Law Offices of Nancy K. Galassi, P.C. (Thomas Torto, New York, NY, of counsel), for appellant.
Gibbons P.C., New York, NY (Paul E. Asfendis of counsel), for respondent Stryker Corporation doing business as Stryker.
Robert L. Hartford, Garden City, NY (James R. Pieret of counsel), for respondent Medpro US, Inc., doing business as Medpro.
HECTOR D. LASALLE, P.J., JOSEPH J. MALTESE, HELEN VOUTSINAS, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered July 2, 2021. The order granted the defendants' separate motions pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them as time-barred.
ORDERED that the order is affirmed, with one bill of costs.
On June 18, 2012, the plaintiff allegedly was injured while he was using a stretcher that was manufactured, sold, and serviced by the defendants. On September 25, 2014, the plaintiff commenced an action against the defendants. The parties entered into both a stipulation to voluntarily discontinue that action and a tolling agreement in which the parties agreed that all applicable statutes of limitations would be tolled from "January 30, 2016 (or later) [to] January 30, 2018."
On September 4, 2020, the plaintiff commenced the instant action against the defendants seeking the same relief. The defendants separately moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them as time-barred. The Supreme Court granted the defendants' separate motions, and the plaintiff appeals.
"'On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired'" (HSBC Bank USA, N.A. v Francis, 214 A.D.3d 58, 61, quoting Cadlerock Joint Venture, L.P. v Trombley, 189 A.D.3d 1157, 1158). "If the defendant satisfies the burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" (Barry v Cadman Towers, Inc., 136 A.D.3d 951, 952). An action to recover damages for personal injuries is subject to a three-year statute of limitations (see CPLR 214[5]; Williams v Ideal Food Basket, LLC, 219 A.D.3d 917, 918) and accrues at the time of injury (see Snyder v Town Insulation, 81 N.Y.2d 429, 432; Barrell v Glen Oaks Vil. Owners, Inc., 29 A.D.3d 612, 613).
Here, the defendants met their initial burden by showing that even after applying the tolling period as set forth in the parties' tolling agreement, the instant action was commenced more than three years after the date of the plaintiff's injury (see Ruiz v Sanchez, 219 A.D.3d 1363, 1364; St. Rose v Thompson, 201 A.D.3d 765, 766). In opposition, the plaintiff failed to raise a question of fact. Contrary to the plaintiff's contention, the tolling agreement did not "recreate" the date of accrual (see generally CPLR 201; Micro-Spy, Inc. v Small, 9 A.D.3d 122, 126). Accordingly, the Supreme Court properly granted the defendants' separate motions pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them as time-barred.
LASALLE, P.J., MALTESE, VOUTSINAS and LOVE, JJ., concur.