| Beizer v Hirsch |
| 2014 NY Slip Op 02403 [116 AD3d 725] |
| April 9, 2014 |
| Appellate Division, Second Department |
| Harriet Beizer, Appellant, v Mitchell Hirsch et al.,Respondents, et al., Defendants. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Joan M. Faley ofcounsel), for respondents.
In an action to recover damages for fraud, the plaintiff appeals from a judgment ofthe Supreme Court, Queens County (Lane, J.), dated September 30, 2011, which, uponan order of the same court dated September 6, 2011, granting those branches of themotion of the defendants Mitchell Hirsch, Scott Hirsch, Hirsch and Hirsch, and Hirschand Hirsch, LLP, which were pursuant to CPLR 3211 (a) (5) and (7) to dismiss thecomplaint insofar as asserted against them, is in favor of those defendants and against theplaintiff dismissing the complaint insofar as asserted against those defendants.
Ordered that the judgment is affirmed, with costs.
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute oflimitations grounds, the moving defendant must establish, prima facie, that the time inwhich to commence the action has expired" (Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91AD3d 768, 768-769 [2012] [internal quotation marks omitted]). "The burden thenshifts to the plaintiff to raise an issue of fact as to whether the statute of limitations istolled or is otherwise inapplicable" (id. at 769 [internal quotation marksomitted]). "[A] fraud-based action must be commenced within six years of the fraud orwithin two years from the time the plaintiff discovered the fraud or could with reasonablediligence have discovered it, whichever is later" (Vilsack v Meyer, 96 AD3d 827, 828 [2012] [internalquotation marks omitted]; see CPLR 213 [8]).
Here, the alleged fraud occurred in 2001, and the defendants Mitchell Hirsch, ScottHirsch, Hirsch and Hirsch, and Hirsch and Hirsch, LLP (hereinafter collectively theHirsch defendants), established, prima facie, through the plaintiff's deposition testimonytaken in May 2007 in another action, that by that time, at the latest, the plaintiff hadacquired knowledge of the alleged fraud. Since the plaintiff did not commence thisaction for fraud until December 22, 2010, which was more than two years after May2007, the Hirsch defendants met their prima facie burden of establishing that the actionwas time-barred. In opposition, the plaintiff failed to raise a triable issue of fact (see Shalik v Hewlett Assoc.,L.P., 93 AD3d 777, 778 [2012]).
Accordingly, the Supreme Court properly granted that branch of the motion of theHirsch defendants which was pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as [*2]asserted against them.
In light of our determination, we need not reach the issue of whether the SupremeCourt properly granted that branch of the motion of the Hirsch defendants which was todismiss the complaint pursuant to CPLR 3211 (a) (7) (see Zaborowski v Local 74,Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d at 768). Dickerson, J.P., Chambers,Austin and Sgroi, JJ., concur. [Prior Case History: 2011 NY Slip Op33316(U).]