Opinion
No. 2022-01024 Index No. 710876/21
04-24-2024
Crispin Cruz, appellant, v. Victor Guaba, etc., et al., respondents.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Max D. Leifer, P.C., New York, NY, for respondents.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Max D. Leifer, P.C., New York, NY, for respondents.
FRANCESCA E. CONNOLLY, J.P. PAUL WOOTEN WILLIAM G. FORD LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered February 7, 2022. The order granted the defendants' motion, in effect, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion, in effect, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred is denied.
On February 4, 2018, the plaintiff allegedly fell in Queens as a result of the defendants' negligence, sustaining personal injuries. More than three years later, on May 12, 2021, the plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants thereafter moved, in effect, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. By order entered February 7, 2022, the Supreme Court granted the defendants' motion. The plaintiff appeals.
"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period" (Kaul v Brooklyn Friends Sch., 220 A.D.3d 939, 940-941 [alterations, citations, and internal quotation marks omitted]). "Pursuant to CPLR 214(5), an action to recover damages for personal injuries is generally subject to a three-year statute of limitations. [However,] Executive Order (A. Cuomo) Nos. 202.8 and 202.67 (9 NYCRR 8.202.8, 8.202.67), enacted by then Governor Andrew Cuomo... in response to the COVID-19 pandemic, acted to toll the applicable statute of limitations for 228 days from March 20, 2020, until November 3, 2020" (Ruiz v Sanchez, 219 A.D.3d 1363, 1363-1364).
Here, the defendants demonstrated, prima facie, that this action to recover damages for personal injuries was time-barred, since the plaintiff commenced it more than three years after the alleged accident occurred (see Weinstein v Gewirtz, 208 A.D.3d 717, 719; Silver v Silver, 162 A.D.3d 937, 939). In opposition, however, the plaintiff established that the limitations period had been partially tolled and that this action was therefore timely commenced. In March 2020, at the time the tolling provision of then Governor Cuomo's executive orders went into effect, the plaintiff had approximately 10 months remaining on the three-year limitations period to commence this action. This remaining period "started to run after the toll was lifted on November 4, 2020" (Ruiz v Sanchez, 219 A.D.3d at 1364; see Brash v Richards, 195 A.D.3d 582, 583-585), and the plaintiff commenced this action approximately 6 months later. Therefore, this action was commenced "well within the statute of limitations" (Williams v Ideal Food Basket, LLC, 219 A.D.3d 917, 918; see McLaughlin v Snowlift, Inc., 214 A.D.3d 720, 721; cf. Bank of New York Mellon v DeMatteis, 222 A.D.3d 1).
Accordingly, the Supreme Court should have denied the defendants' motion, in effect, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
CONNOLLY, J.P., WOOTEN, FORD and VENTURA, JJ., concur.