CPLR R. 3211 Motion to dismiss
(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds
Cimino v Dembeck, 2009 NY Slip Op 03117 (App. Div., 2nd, 2009)
On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5)
on the ground that it is time-barred, the defendant bears the initial
burden of establishing, prima facie, that the time in which to sue has
expired (see Swift v New York Med. Coll., 25 AD3d 686, 687; Savarese v Shatz,
273 AD2d 219, 220). "In order to make a prima facie showing, the
defendant must establish, inter alia, when the plaintiff's cause of
action accrued" (Swift v New York Med. Coll., 25 AD3d at 687).
Moreover, in deciding a CPLR 3211 motion to dismiss, "a court must take
the allegations in the complaint as true and resolve all inferences in
favor of the plaintiff" (Sabadie v Burke, 47 AD3d 913, 914).Construing the facts as alleged in the complaint in the light
most favorable to the plaintiff, the defendants failed to establish
their prima facie entitlement to dismissal pursuant to CPLR 3211(a)(5) (id.; see Swift v New York Med. Coll., 25 AD3d at 687). Accordingly, the Supreme Court [*2]erred in granting the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
The bold is mine.
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