| Jalayer v Stigliano |
| 2012 NY Slip Op 02457 [94 AD3d 702] |
| April 3, 2012 |
| Appellate Division, Second Department |
| Saeid Jalayer et al., Appellants, v Josephine Stigliano et al.,Defendants, and Long Island Lighting Company et al., Respondents. |
—[*1] Hiscock & Barclay, LLP, Buffalo, N.Y. (Karim A. Abdulla of counsel), for respondent LongIsland Lighting Company. McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy andBarry Manus of counsel), for respondent North Shore Cesspool Cleaning Company,Inc.
In an action, inter alia, to recover damages for injury to property, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Nassau County (Driscoll,J.), dated November 19, 2009, as granted those branches of the separate motions of thedefendants Long Island Lighting Company and North Shore Cesspool Cleaning Company, Inc.,which were, in effect, pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, the fourth causeof action, which sought damages for negligence, insofar as asserted against each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
In November 2002 the plaintiffs Saeid Jalayer and Jinous Atai purchased the subject propertyfrom the defendant Estate of Anthony G. Stigliano. In March 2006, while excavating the propertyfor construction purposes, the plaintiffs discovered that the soil contained coal ash and otherwaste material which allegedly was transported to the property by the defendants Long IslandLighting Company and North Shore Cesspool Cleaning Company, Inc. (hereinafter together thedefendants).
On August 7, 2008, the plaintiffs commenced this action, inter alia, to recover damages forinjury to the property. In the order appealed from, the Supreme Court, among other things,granted those branches of the separate motions of the defendants which were, in effect, pursuantto CPLR 3211 (a) (5) to dismiss, as time-barred, the fourth cause of action, which soughtdamages for negligence insofar as asserted against each of them.
In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by theapplicable statute of limitations, a defendant bears the initial burden of demonstrating, primafacie, that the time within which to commence the action has expired (see Fleetwood Agency, Inc. v Verde Elec.Corp., 85 AD3d 850 [2011]; Rakusin v Miano, 84 AD3d 1051 [2011]; Krichmar v Scher, 82 AD3d 1164,[*2]1165 [2011]). The burden then shifts to the plaintiff to raisean issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable,or whether they actually commenced the action within the applicable limitations period (see Williams v New York City Health &Hosps. Corp., 84 AD3d 1358 [2011]). Here, the defendants made a prima facie showingthat the fourth cause of action was time-barred (see Swift v New York Med. Coll., 25 AD3d 686, 687 [2006]), andthe plaintiffs failed to raise a question of fact as to whether the statute of limitations was tolled orwas otherwise inapplicable, or whether they actually commenced the action within the applicablelimitations period. Indeed, the plaintiffs did not oppose those branches of the defendants' separatemotions which were, in effect, pursuant to CPLR 3211 (a) (5) to dismiss as time-barred thefourth cause of action to recover damages for negligence insofar as asserted against them.Accordingly, the Supreme Court properly granted those branches of the defendants' separatemotions which were, in effect, pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, thefourth cause of action insofar as asserted against each of them.
The plaintiffs' remaining contention is not properly before this Court. Rivera, J.P., Florio,Leventhal and Roman, JJ., concur.