St. Rose v. Thompson

201 A.D.3d 765

156 N.Y.S.3d 896 (Mem)

Laurentia ST. ROSE, respondent,

v.Tiesha THOMPSON, appellant, et al., defendant.

2019–00672

Index No. 508692/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 8, 2021

January 12, 2022

McDonnell Adels & Klestzick, PLLC (Rivkin Radler LLP, Uniondale, NY [Cheryl F. Korman and Staurt M. Bodoff ], of counsel), for appellant.

Spar & Bernstein, P.C. (The Leyvi Law Group, P.C., Brooklyn, NY [Maksim Leyvi ], of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Tiesha Thompson appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated December 6, 2018. The order, insofar as appealed from, denied that defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Tiesha Thompson pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred is granted.

On March 31, 2015, as the plaintiff was crossing a street in Brooklyn, she allegedly was struck by a vehicle registered to the defendant Tiesha Thompson. More than three years later, on April 27, 2018, the plaintiff commenced this action against Thompson and the unknown driver of the vehicle. Thompson moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred. The Supreme Court denied the motion, and Thompson appeals.

On a motion pursuant to CPLR 3211(a)(5) to dismiss a cause of action on the ground that it is barred by the statute of limitations, the moving defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Avery v. WJM Dev. Corp., 197 A.D.3d 1141, 153 N.Y.S.3d 511 ). If that initial burden is satisfied, the plaintiff must then 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 (see Barry v. Cadman Towers, Inc., 136 A.D.3d 951, 952, 25 N.Y.S.3d 342 ).

Here, Thompson met her initial burden by showing that the action was commenced more than three years after the date of the plaintiff's injury (see CPLR 214[5] ; Lindsay v. Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 A.D.3d 790, 792, 12 N.Y.S.3d 124 ). In opposition to the motion, the plaintiff failed to raise a question of fact (see Putter v. North Shore Univ. Hosp., 7 N.Y.3d 548, 552–553, 825 N.Y.S.2d 435, 858 N.E.2d 1140 ; MP v....