| Yang v Oceanside Union Free School Dist. |
| 2011 NY Slip Op 08933 [90 AD3d 649] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Michael David Yang, Respondent, v Oceanside Union FreeSchool District et al., Appellants. |
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Frank X. Kilgannon, Mineola, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), datedNovember 19, 2010, as denied that branch of their motion which was pursuant to CPLR 3211 (a)(5) to dismiss the complaint as barred by the statute of limitations.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint as barred by the statute of limitations is granted.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute of limitationsgrounds, the moving defendant must establish, prima facie, that the time in which to commencethe action has expired. The burden then shifts to the plaintiff to raise an issue of fact as towhether the statute of limitations is tolled or is otherwise inapplicable (see Christodoulou v Christodoulou, 89AD3d 783 [2011]; Rakusin vMiano, 84 AD3d 1051, 1052 [2011]).
Here, the defendants established, prima facie, that the complaint was filed more than oneyear and 90 days after the plaintiff's cause of action accrued and, thus, was untimely (seeEducation Law § 3813 [2]; General Municipal Law § 50-i [1]). The defendantsdemonstrated that the one-year-and-90-day statute of limitations began to run on March 30, 2009,the date of the plaintiff's 18th birthday, when the infancy toll had terminated (see CPLR208; Henry v City of New York, 94 NY2d 275 [1999]). However, the complaint was notfiled until August 9, 2010.
The plaintiff failed to meet his burden of raising an issue of fact as to whether the statute oflimitations was tolled or was otherwise inapplicable (see Babu v Consolidated Edison Co. of N.Y., Inc., 72 AD3d 852[2010]). In particular, the plaintiff's affidavit was insufficient to demonstrate that any allegednegligent acts were committed by the defendants after March 30, 2009.
Accordingly, that branch of the defendants' motion which was pursuant to CPLR [*2]3211 (a) (5) to dismiss the complaint as barred by the statute oflimitations should have been granted. Dillon, J.P., Eng, Hall and Austin, JJ., concur.