| Sabadie v Burke |
| 2008 NY Slip Op 00676 [47 AD3d 913] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Francisca A. Sabadie, Appellant, v George Burke et al.,Respondents. |
—[*1] Lazare Potter Giacovas & Kranjac, LLP, New York, N.Y. (Robert A. Giacovas of counsel),for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from(1) an order of the Supreme Court, Westchester County (LaCava, J.), entered June 19, 2006,which granted the defendants' motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint astime-barred, and (2) an order of the same court entered March 9, 2007, which denied theplaintiff's motion for leave to renew and reargue.
Ordered that the appeal from so much of the order entered March 9, 2007, as denied thatbranch of the plaintiff's motion which was for leave to reargue, is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order entered June 19, 2006 is reversed, on the law, and the defendant'smotion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred is denied; and it isfurther,
Ordered that the appeal from so much of the order entered March 9, 2007, as denied that[*2]branch of the plaintiff's motion which was for leave to renew,is dismissed as academic in light of our determination of the appeal from the order entered June19, 2006; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
"To dismiss a cause of action pursuant to CPLR 3211 (a) (5), on the ground that it is barredby the Statute of Limitations, a defendant bears the initial burden of establishing prima facie thatthe time in which to sue has expired" (Savarese v Shatz, 273 AD2d 219, 200 [2000]; see also Swift v New York Med. Coll.,25 AD3d 686, 687 [2006]). In addition, upon a CPLR 3211 motion to dismiss acomplaint, a court must take the allegations in the complaint as true and resolve all inferences infavor of the plaintiff (see Cron v Hargro Fabrics, 91 NY2d 362 [1998]; Leon vMartinez, 84 NY2d 83 [1994]; AAA Viza, Inc. v Business Payment Sys., LLC, 38 AD3d 802, 803[2007]).
Construing the facts in the complaint in the light most favorable to the plaintiff, thedefendants failed to establish their prima facie entitlement to dismissal pursuant to CPLR 3211(a) (5) as a matter of law (see Petracca v Petracca, 305 AD2d 566, 567 [2003]).Accordingly, the Supreme Court improperly granted the defendants' motion pursuant to CPLR3211 (a) (5) to dismiss the complaint as time-barred. Mastro, J.P., Santucci, Balkin andDickerson, JJ., concur.