| Cimino v Dembeck |
| 2009 NY Slip Op 03117 [61 AD3d 802] |
| April 21, 2009 |
| Appellate Division, Second Department |
| James Cimino, Jr., Appellant, v Joseph J. Dembeck, Jr., etal., Respondents. |
—[*1] Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh, N.Y. (Joseph A. Catania,Jr., of counsel), for respondents.
In an action, inter alia, for specific performance of a joint venture agreement, the plaintiffappeals from an order of the Supreme Court, Orange County (Alessandro, J.), entered April 11,2008, which granted the defendants' motion pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint as time-barred.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionpursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred is denied.
On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that itis time-barred, the defendant bears the initial burden of establishing, prima facie, that the time inwhich to sue has expired (see Swift vNew York Med. Coll., 25 AD3d 686, 687 [2006]; Savarese v Shatz, 273 AD2d219, 220 [2000]). "In order to make a prima facie showing, the defendant must establish, interalia, when the plaintiff's cause of action accrued" (Swift v New York Med. Coll., 25AD3d at 687). Moreover, in deciding a CPLR 3211 motion to dismiss, "a court must take theallegations in the complaint as true and resolve all inferences in favor of the plaintiff" (Sabadie v Burke, 47 AD3d 913,914 [2008]).
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 CPLR3211 (a) (5) (id.; see Swift v New York Med. Coll., 25 AD3d at 687).Accordingly, the Supreme Court [*2]erred in granting thedefendants' motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.
The remaining contentions either are improperly raised for the first time on appeal, havebeen rendered academic by our determination, or are without merit. Skelos, J.P., Dillon,Leventhal and Chambers, JJ., concur.