| Lessoff v 26 Ct. St. Assoc., LLC |
| 2009 NY Slip Op 00195 [58 AD3d 610] |
| January 13, 2009 |
| Appellate Division, Second Department |
| Jeffrey Lessoff, Respondent, v 26 Court Street Associates,LLC, Appellant, et al., Defendants. |
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In an action to recover damages for personal injuries, the defendant 26 Court StreetAssociates, LLC, appeals (1), as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Saitta, J.), dated March 22, 2007, as denied that branch of its motionwhich was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against itas time-barred, and (2) an order of the same court (Marano, J.), dated December 5, 2007.
Ordered that the appeal from the order dated December 5, 2007 is dismissed as abandoned;and it is further,
Ordered that the order dated March 22, 2007 is reversed insofar as appealed from, on thelaw, and that branch of the motion which was pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint insofar as asserted against the appellant as time-barred is granted; and it is further,
Ordered that one bill of costs is awarded to the appellant.
On August 22, 2003 the plaintiff mailed a letter to the appellant claiming that he had beeninjured as the result of a slip and fall in the appellant's building. On October 10, 2006 theplaintiff commenced this action by filing a summons and complaint. The complaint, which wasnot properly verified, alleged that the same accident occurred on October 11, 2003 (seeCPLR 3020, 3021). The [*2]appellant moved, inter alia, todismiss the action as time-barred, contending that the accident occurred on or prior to August 22,2003, and that the action, which was commenced more than three years after the underlyingaccident, was untimely. The Supreme Court denied that branch of the motion.
In support of that branch of its motion which was pursuant to CPLR 3211 (a) (5) to dismissthe complaint insofar as asserted against it as time-barred, the appellant established throughdocumentary evidence that the plaintiff's action accrued on or before August 22, 2003. Since theaction was commenced after the expiration of the three-year statute of limitations by the filing ofa summons and complaint on October 10, 2006, the appellant sustained the initial burden ofproving that the action was untimely (see CPLR 214 [5]; Etienne v H. Schrier & Co., Inc., 53AD3d 470 [2008]; Levinsky vMugermin, 52 AD3d 477 [2008]; Marino v Proch, 258 AD2d 628 [1999]).Thereafter, the burden was upon the plaintiff to aver evidentiary facts establishing that the actionwas timely or to raise an issue of fact as to whether the action was timely (see Gravel vCicola, 297 AD2d 620, 621 [2002]; Assad v City of New York, 238 AD2d 456, 457[1997]).
In opposition, the plaintiff, who is an attorney, submitted his own affirmation and themedical report of his physician. It was improper for the plaintiff to submit his own affirmationrather than an affidavit, since he was a party to the action (see CPLR 2106; Muniz v Katlowitz, 49 AD3d 511,513 [2008]; DeLeonardis v Brown,15 AD3d 525, 526 [2005]; Matter of Sassower v Greenspan, Kanarek, Jaffe & Funk,121 AD2d 549 [1986]). Furthermore, the purported date of the accident contained in thephysician's report constituted inadmissible hearsay, since the source of that information wasunknown and may have been part of the history relayed by the plaintiff (see Albrecht v AreaBus Corp., 249 AD2d 253, 255 [1998]; Ginsberg v North Shore Hosp., 213 AD2d592 [1995]; Echeverria v City of New York, 166 AD2d 409, 410 [1990]). Moreover, theaffidavit of the office manager of the plaintiff's law firm was improperly submitted in surreply(see CPLR 2214; Boockvor vFischer, 56 AD3d 405 [2008]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d416, 417 [2003]). In any event, that affidavit was of no probative value. Since the plaintifffailed to produce any evidentiary facts with respect to the date of the accident, that branch of themotion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst the appellant as time-barred should have been granted. Spolzino, J.P., Santucci, Miller,Dickerson and Eng, JJ., concur.