| Papa v Fairfield on the Green |
| 2014 NY Slip Op 08967 [123 AD3d 990] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| Donna Papa et al., Respondents, v Fairfield onthe Green, Appellant. |
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale,N.Y. (Kathleen D. Foley of counsel), for appellant.
Dell & Dean, PLLC, Garden City, N.Y. (Jay J. Massaro of counsel), forrespondents.
In an action to recover damages for fraud, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.),dated July 22, 2013, as denied its motion to dismiss the complaint pursuant to CPLR3211 (a) (5) and (7).
Ordered that the order is affirmed insofar as appealed from, with costs.
Accepting the facts alleged in the complaint as true, and according the plaintiffs thebenefit of every possible favorable inference, as we must on a motion pursuant to CPLR3211 (a) (7) (see Nonnon v Cityof New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83,87-88 [1994]; Tooma vGrossbarth, 121 AD3d 1093 [2014]; Alva v Gaines, Gruner, Ponzini & Novick, LLP, 121AD3d 724 [2014]), the complaint sufficiently states, with the required particularity(see CPLR 3016 [b]), a cause of action to recover damages for fraud (see Nerey v Greenpoint Mtge.Funding, Inc., 116 AD3d 1014, 1015 [2014]; Vermont Mut. Ins. Co. v McCabe& Mack, LLP, 105 AD3d 837, 839-840 [2013]; Camisa v Papaleo, 93 AD3d623, 624-625 [2012]). Accordingly, the Supreme Court properly denied that branchof the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a)(7).
Moreover, the Supreme Court also properly denied that branch of the defendant'smotion which was to dismiss the complaint pursuant to CPLR 3211 (a) (5). In moving todismiss a complaint pursuant to CPLR 3211 (a) (5) as barred by the applicable statute oflimitations, a defendant bears the initial burden of demonstrating, prima facie, that thetime within which to commence the action has expired. The burden then shifts to theplaintiff to raise a question of fact as to whether the statute of limitations was tolled orwas otherwise inapplicable, or whether it actually commenced the action within theapplicable limitations period (see Gould v Decolator, 121 AD3d 845 [2014]; Matteawan On Main, Inc. v City ofBeacon, 109 AD3d 590 [2013]; Singh v Edelstein, 103 AD3d 873 [2013]). Here, thedefendant failed to meet its prima facie burden of establishing that the action wastime-barred (see CPLR 213 [8]; Chung v Wang, 79 AD3d 693, 694 [2010]). Accordingly,the Supreme Court properly denied that branch of the defendant's motion which was todismiss the complaint pursuant to CPLR 3211 (a) (5). Rivera, J.P., Roman, Duffy andBarros, JJ., concur.