Opinion
2014-12-24
Donna PAPA, et al., respondents, v. FAIRFIELD ON THE GREEN, appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant. Dell & Dean, PLLC, Garden City, N.Y. (Jay J. Massaro of counsel), for respondents.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant. Dell & Dean, PLLC, Garden City, N.Y. (Jay J. Massaro of counsel), for respondents.
In an action to recover damages for fraud, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated July 22, 2013, as denied its motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7).
ORDERED that the order is affirmed insofar as appealed from, with costs.
Accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, as we must on a motion pursuant to CPLR 3211(a)(7) ( see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Tooma v. Grossbarth, 121 A.D.3d 1093, 995 N.Y.S.2d 593; Alva v. Gaines, Gruner, Ponzini & Novick, LLP, 121 A.D.3d 724, 995 N.Y.S.2d 78), the complaint sufficiently states, with the required particularity ( see CPLR 3016[b] ), a cause of action to recover damages for fraud ( see Nerey v. Greenpoint Mtge. Funding, Inc., 116 A.D.3d 1014, 1015, 983 N.Y.S.2d 887; Vermont Mut. Ins. Co. v. McCabe & Mack, LLP, 105 A.D.3d 837, 839–840, 964 N.Y.S.2d 160; Camisa v. Papaleo, 93 A.D.3d 623, 624–625, 939 N.Y.S.2d 559). Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7).
Moreover, the Supreme Court also properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(5). In moving to dismiss a complaint pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period ( see Gould v. Decolator, 121 A.D.3d 845, 994 N.Y.S.2d 368; Matteawan On Main, Inc. v. City of Beacon, 109 A.D.3d 590, 970 N.Y.S.2d 631; Singh v. Edelstein, 103 A.D.3d 873, 962 N.Y.S.2d 225). Here, the defendant failed to meet its prima facie burden of establishing that the action was time-barred ( see CPLR 213 [8]; Chung v. Wang, 79 A.D.3d 693, 694, 912 N.Y.S.2d 647). Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(5). RIVERA, J.P., ROMAN, DUFFY and BARROS, JJ., concur.