| Philip F. v Roman Catholic Diocese of Las Vegas |
| 2010 NY Slip Op 00922 [70 AD3d 765] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Philip F., et al., Appellants, v Roman Catholic Diocese ofLas Vegas et al., Respondents. |
—[*1] Conway, Farrell, Curtin & Kelly P.C., New York, N.Y. (Jonathan T. Uejio and Joseph H.Farrell of counsel), for respondent Roman Catholic Diocese of Las Vegas. Weinstein Group, P.C., Hauppauge, N.Y. (Lloyd J. Weinstein of counsel), for respondentRobert P.
In an action, inter alia, to recover damages for battery and intentional and negligent inflictionof emotional distress, etc., the plaintiffs appeal from so much of (1) an order of the SupremeCourt, Queens County (Mayersohn, J.), entered March 13, 2009, as granted that branch of themotion of the defendant Roman Catholic Diocese of Las Vegas which was to dismiss thecomplaint insofar as asserted against it as time-barred pursuant to CPLR 3211 (a) (5), and (2) anorder of the same court entered June 29, 2009, which granted that branch of the motion of thedefendant Robert P. which was to dismiss the complaint insofar as asserted against him astime-barred pursuant to CPLR 3211 (a) (5).
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
The plaintiff Philip F. (hereinafter the plaintiff) alleges that he was sexually abused by thedefendant Robert P. from 1985 to 1989 when he was between the ages of 10 and 14, and whileRobert P., a priest, was employed by the defendant Roman Catholic Diocese of Las Vegas(hereinafter the Diocese). The plaintiff, with his wife, suing derivatively, commenced the instantaction in 2008. The defendants separately moved to dismiss, inter alia, on the ground that thecauses of action interposed were barred by the applicable statutes of limitations.
In the two orders appealed from, the Supreme Court granted the branches of the motionswhich were to dismiss the complaint as time-barred. We affirm.
In considering a motion to dismiss pursuant to CPLR 3211, the pleading is afforded a liberalconstruction (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87 [1994]). Assuch, the court will "accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts as alleged fitwithin any cognizable legal [*2]theory" (Leon vMartinez, 84 NY2d at 87-88). In moving for dismissal pursuant to CPLR 3211 (a) (5), adefendant must establish, prima facie, that one or more of the asserted causes of action aretime-barred (see 6D Farm Corp. vCarr, 63 AD3d 903 [2009]; Santo B. v Roman Catholic Archdiocese of N.Y., 51 AD3d 956,957 [2008]; Matter of Schwartz, 44AD3d 779 [2007]). To meet its burden, a defendant must establish when the causes of actionaccrued (id.; see Swift v NewYork Med. Coll., 25 AD3d 686 [2006]). Only if the defendant makes such a prima facieshowing does the burden then shift to the plaintiff to "aver evidentiary facts establishing that thecase falls within an exception to the [s]tatute of [l]imitations" (Savarese v Shatz, 273AD2d 219, 220 [2000] [internal quotation marks omitted]; Swift v New York Med. Coll., 25 AD3d 686, 687 [2006]) or that aquestion of fact exists as to whether an exception applies (see Santo B. v Roman CatholicArchdiocese of N.Y., 51 AD3d at 957).
Here, in opposition to the defendants' prima facie showing that the causes of actioninterposed were time-barred (id. at 957; Matter of Schwartz, 44 AD3d 779 [2007]; Swift v New YorkMed. Coll., 25 AD3d at 686), the plaintiffs asserted, inter alia, that the defendants should beequitably estopped from raising a statutes of limitations defense. However, even accepting thefacts set forth in the complaint as true and according the plaintiffs the benefit of every reasonableinference, the plaintiffs failed to demonstrate that they reasonably relied on any deception, fraud,or misrepresentations by the defendants, which effectively prevented them from timelycommencing the action (see Putter vNorth Shore Univ. Hosp., 7 NY3d 548, 552-553 [2006]; Zumpano v Quinn, 6 NY3d 666,674 [2006]; Santo B. v Roman Catholic Archdiocese of N.Y., 51 AD3d at 957-958; Owen v Mackinnon, 6 AD3d 684[2004]).
The plaintiffs' remaining contentions are without merit.
The Diocese's remaining argument is not properly before this Court (see Katz vKatz, 68 AD2d 536, 542-543 [1979]). Rivera, J.P., Dillon, Belen and Roman, JJ., concur.