| Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO |
| 2012 NY Slip Op 00366 [91 AD3d 768] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Bogdan Zaborowski, Respondent, v Local 74, Service EmployeesInternational Union, AFL-CIO, Also Known as United Service Workers Union Local 74,Appellant, et al., Defendants. |
—[*1] Dandeneau & Lott, Melville, N.Y. (Dawn A. Lott of counsel), for respondent.
In an action, inter alia, to recover damages for breach of the duty of fair representation, thedefendant Local 74, Service Employees International Union, AFL-CIO, also known as UnitedService Workers Union Local 74, appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Asher, J.), dated March 29, 2011, as denied its motion pursuantto CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the appellant's motion which was pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint insofar as asserted against it as time-barred is granted, and that branch of the motionwhich was pursuant to CPLR 3211 (a) (7) is denied as academic.
In April 2010, the plaintiff commenced an action in federal district court against, amongothers, the appellant, alleging, inter alia, breach of the duty of fair representation. Thereafter, thefederal action was voluntarily discontinued pursuant to a stipulation of discontinuance. InSeptember 2010, the plaintiff commenced this action, similarly alleging that the appellant hadbreach its duty of fair representation. The Supreme Court denied the appellant's motion pursuantto CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as asserted against it astime-barred and for failure to state a cause of action, respectively.
"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" (Baptiste v Harding-Marin, 88 AD3d752, 753 [2011]; see Rakusin vMiano, 84 AD3d 1051, 1052 [2011]).
Here, in opposition to the appellant's prima facie showing that the time in which tocommence this action has expired, the plaintiff failed to raise an issue of fact as to whether thestatute of limitations was tolled pursuant to CPLR 205 (a). CPLR 205 (a) is not applicable to theinstant case, since the plaintiff's similar and timely commenced federal action was terminated by[*2]means of a voluntary discontinuance pursuant to a stipulationwhich contains no express statement of intent to preserve the right to commence a new action(see Naval v Lehman Coll., 303 AD2d 662 [2003]; Kourkoumelis v Arnel, 238AD2d 313 [1997]; cf. George v Mt. Sinai Hosp., 47 NY2d 170, 180 [1979]).
Accordingly, the Supreme Court should have granted that branch of the appellant's motionwhich was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against itas time-barred. Rivera, J.P., Roman, Sgroi and Cohen, JJ., concur.