Opinion
CA 03-02554.
October 1, 2004.
Appeal from an order of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered August 13, 2003. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.
Before: Pine, J.P., Scudder, Kehoe, Martoche and Lawton, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the complaint is dismissed, and the cross motion is denied.
Memorandum: Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment. Plaintiff's cause of action to recover health benefits accrued in 1981 when plaintiff's employment and benefits were terminated ( see Schirmer v. Town of Harrison, 294 AD2d 347). Plaintiff commenced his action in August 2001, and thus it is time-barred. Consequently, we reverse the order, grant defendant's motion, dismiss the complaint, and deny plaintiff's cross motion.