| Evan S. v Joseph R. |
| 2010 NY Slip Op 00831 [70 AD3d 668] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Evan S., Respondent, v Joseph R.,Appellant. |
—[*1] George J. Calcagnini, Somers, N.Y., for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals (1)from an order of the Supreme Court, Putnam County (O'Rourke, J.), dated June 24, 2008, whichheld in abeyance his motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint astime-barred, and (2), as limited by his brief, from so much of an order of the same court datedSeptember 10, 2008, as, upon reargument and renewal, denied his motion pursuant to CPLR3211 (a) (5) to dismiss the complaint as time-barred.
Ordered that the appeal from the order dated June 24, 2008, is dismissed; and it is further,
Ordered that the order dated September 10, 2008, is reversed insofar as appealed from, onthe law, and, upon reargument and renewal, the defendant's motion pursuant to CPLR 3211 (a)(5) to dismiss the complaint as time-barred is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The June 24, 2008, order appealed from did not decide the defendant's motion to dismiss,but, instead, held it in abeyance. Accordingly, that order is not appealable as of right (seeCPLR 5701 [a] [2]; Acunto vStewart Ave. Gardens, LLC, 26 AD3d 305 [2006]; Housberg v Curtin, 209AD2d 670, 671 [1994]; Matter of Fritsch v Westchester County Dept. of Transp., 170AD2d 602 [1991]), and we decline to grant leave to appeal, as that order was superseded by theorder dated September 10, 2008.
Upon reargument and renewal, the Supreme Court should have granted the defendant'smotion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred. The plaintiffsought to recover damages for injuries arising from alleged sexual assaults which purportedlyoccurred in 1995 when he was 10 years old. Pursuant to the toll for infancy (see CPLR208), the applicable one-year statute of limitations (see CPLR 215 [3]; Krioutchkova v Gaad Realty Corp., 28AD3d 427, 428 [2006]; Tserotas v Greek Orthodox Archdiocese of N. & S. Am.,251 AD2d 323, 324 [1998]) began to run in 2003, after the plaintiff turned 18. Accordingly, thestatute of limitations expired in 2004, and the plaintiff's commencement of this action in 2008was untimely (see McDonald v McDonald, 193 AD2d 590, 591 [1993]; Pittelli vSchulman, 128 AD2d 600, 602 [1987]). Further, the alleged threats made by the defendant atthe time of the incidents, and on a subsequent occasion while the parties were in high school, didnot rise to the requisite level necessary to equitably estop the defendant from asserting the statuteof limitations as a defense to this action brought by the plaintiff approximately five years after hereached the age of majority (seegenerally Zumpano v Quinn, 6 NY3d 666, 674-675 [2006]; Santo B. v Roman Catholic Archdiocese ofN.Y., 51 AD3d 956, 957-958 [2008]; Doe v Holy See [State of Vatican City], 17 AD3d 793, 796 [2005];Zoe G. v Frederick F.G., 208 AD2d 675, 675-676 [1994]; Doe v Roe, 5 Misc 3d1032[A], 2004 NY Slip Op 51667[U] [2004]). Mastro, J.P., Balkin, Eng and Leventhal, JJ.,concur.