CPLR R. 3211(a)(5) Motion to dismiss for SOL (or other things, but SOL in this case)
Kuo v Wall St. Mtge. Bankers, Ltd., 2009 NY Slip Op 06511 (App. Div., 2nd, 2009)
The Supreme Court also correctly denied that branch of the defendant's
motion which was to dismiss the complaint as barred by the statute of
limitations. "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 . . . In order to make a prima facie
showing, the defendant must establish, inter alia, when the plaintiff's
cause of action accrued. Where, as here, the claim is for the payment
of a sum of money allegedly owed pursuant to a contract, the cause of
action accrues when the plaintiff possesses a legal right to demand
payment'" (Swift v New York Med. Coll., 25 AD3d 686, 687, quoting Matter of Prote Contr. Co. v Board of Educ. of City of N.Y., 198 AD2d 418, 420 [citations [*2]omitted]; see Cimino v Dembeck, 61 AD3d 802; Matter of Schwartz, 44 AD3d 779).
The defendant offered no evidence that would support a determination
that the plaintiff had a legal right to demand payment of her
compensation, in connection with the subject loan transaction, prior to
the defendant's receipt of the commission fees from the borrower.
The bold is mine.
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