| Romanelli v Disilvio |
| 2010 NY Slip Op 06368 [76 AD3d 553] |
| August 10, 2010 |
| Appellate Division, Second Department |
| Salvatore Romanelli, Appellant, v Maria Disilvio et al.,Respondents. |
—[*1] Jaspan Schlesinger, LLP, Garden City, N.Y. (Steven R. Schlesinger and Daniel E. Shapiro ofcounsel), for respondents.
In an action, inter alia, to recover damages for breach of a stipulation of settlement, theplaintiff appeals, as limited by his reply brief, from so much of an order of the Supreme Court,Nassau County (Winslow, J.), dated September 16, 2008, as granted those branches of thedefendants' motion which were pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, thesecond and fourth causes of action and so much of the first cause of action as sought to recoverdamages for the breach of a stipulation of settlement based on the defendants' failure toprosecute tax certiorari proceedings.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss thesecond cause of action in its entirety and substituting therefor a provision denying that branch ofthe motion with respect to so much of the second cause of action as sought a judgment declaringthat the defendants breached the stipulation of settlement by failing to prosecute tax certiorariproceedings against the County of Nassau and otherwise granting that branch of the motion, and(2) by deleting the provision thereof granting that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (5) to dismiss so much of the first cause of action as sought torecover damages for breach of the stipulation of settlement based on the defendants' allegedfailure to prosecute tax certiorari proceedings against the County of Nassau and the Village ofLynbrook, and substituting therefor a provision denying that branch of the motion with respect toso much of the first cause of action as sought to recover damages based upon the defendants'alleged failure to prosecute tax certiorari proceedings against the County of Nassau andotherwise granting that branch of the motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
By summons and complaint filed May 1, 2008, the plaintiff commenced this action againstthe defendants alleging, inter alia, a breach of a stipulation of settlement of a prior action, andthat the defendants fraudulently induced the plaintiff into entering that stipulation.[*2]
Upon the defendants' motion, the Supreme Court, interalia, dismissed the second and fourth causes of action in their entirety and the first cause ofaction to the extent it alleged a failure of the defendants to prosecute tax certiorari proceedings inbreach of the stipulation of settlement. The plaintiff appeals.
On a motion to dismiss pursuant to CPLR 3211 (a) (5), the moving defendant must establish,prima facie, "that the time in which to commence an action has expired. The burden then shiftsto the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within anexception to the statute of limitations, or raising an issue of fact as to whether such an exceptionapplies" (Texeria v BAB NuclearRadiology, P.C., 43 AD3d 403, 405 [2007] [citations omitted]; see 6D Farm Corp. v Carr, 63 AD3d903, 905-906 [2009]; Savarese v Shatz, 273 AD2d 219 [2000]). On their motion, thedefendants made a prima facie showing that the statute of limitations had expired as to thatportion of the first cause of action which was to recover damages for the defendants' allegedfailure to pursue real estate tax certiorari proceedings against the Village of Lynbrook, inviolation of the stipulation of settlement, and as to that portion of the second cause of actionwhich was for a judgment declaring the same to be a violation of the stipulation of settlement(see 6D Farm Corp. v Carr, 63 AD3d at 905-906). In opposition, the plaintiff failed toaver evidentiary facts establishing that said portion of the cause of action fell within an exceptionto the statutes of limitations, or to raise an issue of fact as to whether General Obligations Law§ 17-101 applied (63 AD3d at 905-906; Santo B. v Roman Catholic Archdiocese of N.Y., 51 AD3d 956[2008]; cf. Jeffrey L. Rosenberg &Assoc., LLC v Lajaunie, 54 AD3d 813 [2008]).
The defendants failed, however, to make a prima facie showing that the statute of limitationsexpired as to those portions of the first and second causes of action arising out of the defendants'alleged failure to prosecute real estate tax certiorari proceedings against the County of Nassau.The defendants failed to establish the time of the accrual of those claims and, therefore, failed toestablish the expiration of the statute of limitations (see Minskoff Grant Realty & Mgt. Corp. v 211 Mgr. Corp., 71 AD3d843 [2010]; Kuo v Wall St. Mtge.Bankers, Ltd., 65 AD3d 1089 [2009]).
The plaintiff's remaining contentions are either improperly raised for the first time on appealor without merit. Mastro, J.P., Santucci, Chambers and Roman, JJ., concur.