| Hebrew Inst. for Deaf & Exceptional Children v Kahana |
| 2008 NY Slip Op 09960 [57 AD3d 734] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Hebrew Institute for the Deaf and Exceptional Children,Respondent, v Abraham M. Kahana et al., Defendants, and David Neiderman,Appellant. |
—[*1] Allen Lashley, Brooklyn, N.Y. (Roger Bennet Adler of counsel), for respondent.
In an action, inter alia, to recover damages for conversion, the defendant David Neidermanappeals, as limited by his brief, from (1) so much of an amended order of the Supreme Court, KingsCounty (F. Rivera, J.), dated July 13, 2007, as denied those branches of his motion which werepursuant to CPLR 3211 (a) (1), (2), (3), (5) and (7) to dismiss the complaint insofar as asserted againsthim, and (2) so much of an order of the same court dated November 16, 2007, as amended November16, 2007, as, upon renewal and reargument, adhered to the prior determination.
Ordered that the appeal from the amended order dated July 13, 2007, is dismissed, as that orderwas superseded by the order dated November 16, 2007, as amended, made upon renewal andreargument; and it is further,
Ordered that the order dated November 16, 2007, as amended, is reversed insofar as appealedfrom, on the law, upon renewal and reargument, so much of the amended order dated July 13, 2007, asdenied those branches of the appellant's motion which were pursuant to CPLR 3211 (a) (1), (2), (3),(5) and (7) is vacated, those branches of the appellant's motion which were pursuant to CPLR 3211(a) (5) and (7) to dismiss the complaint insofar as asserted against him are granted, and those branchesof the appellant's motion which were pursuant to CPLR 3211 (a) (1), (2) and (3) are denied asacademic; and it is further,
Ordered that one bill of costs is awarded to the appellant.[*2]
"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 ofestablishing prima facie that the time in which to sue has expired" (Sabadie v Burke, 47 AD3d 913, 914 [2008] [citation and internalquotation marks omitted]). If the movant meets this burden, the burden then shifts to the plaintiff to"aver evidentiary facts establishing that the case falls within an exception to the Statute of Limitations"(Savarese v Shatz, 273 AD2d 219, 220 [2000] [citations and internal quotation marksomitted]; see Texeria v BAB NuclearRadiology, P.C., 43 AD3d 403, 405 [2007]). Here, the defendant David Neiderman(hereinafter the appellant), established, prima facie, that the causes of action alleging conversion andaiding and abetting conversion were time-barred. The plaintiff failed to meet its burden in opposition. Itscontention that the subject causes of action were timely interposed against the appellant pursuant toCPLR 205 (a) is without merit (see Gem Flooring v Kings Park Indus., 5 AD3d 542, 543-544[2004]; Meneely v Hitachi Seiki USA, 175 AD2d 111, 112-113 [1991]; Bishop v UnoPizza, 188 Misc 2d 142, 144-145 [2001]). Accordingly, upon renewal and reargument, theSupreme Court should have granted that branch of the appellant's motion which was to dismiss thecauses of action alleging conversion and aiding and abetting conversion insofar as asserted against himas time-barred pursuant to CPLR 3211 (a) (5).
The only remaining cause of action asserted against the appellant alleged civil conspiracy to commitconversion. New York does not recognize civil conspiracy to commit a tort as an independent cause ofaction (see Salvatore v Kumar, 45 AD3d560, 563 [2007]); rather, such a claim stands or falls with the underlying tort (see Salvatore vKumar, 45 AD3d at 563-564). Since its viability in this case was derivative of the underlying tortof conversion, and the latter claim must be dismissed, the civil conspiracy claim insofar as assertedagainst the appellant also should have been dismissed.
In light of our determination, we need not reach the parties' remaining contentions. Mastro, J.P.,Miller, Balkin and McCarthy, JJ., concur.