| Barry v Cadman Towers, Inc. |
| 2016 NY Slip Op 01277 [136 AD3d 951] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| John Barry et al., Appellants, v CadmanTowers, Inc., et al., Defendants, and City of New York Department of HousingPreservation and Development, Respondent. |
Robert M. Rambadadt, New York, NY, for appellants.
Zachary W. Carter, Corporation Counsel, New York, NY (Kristin M. Helmers andMichael J. Pastor of counsel), for respondent.
In an action, inter alia, to recover damages for housing discrimination based ondisability in violation of, among other things, the Fair Housing Act (42 USC§ 3601 et seq.), and for violation of due process rights pursuant to42 USC § 1983, the plaintiffs appeal (1) from an order of the SupremeCourt, Kings County (Landicino, J.), dated April 4, 2013, which granted that branch ofthe motion of the defendant City of New York Department of Housing Preservation andDevelopment which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofaras asserted against it as time-barred, and (2), as limited by their brief, from so much of anorder of the same court dated November 25, 2013, as, in effect, upon reargument,adhered to the original determination.
Ordered that the appeal from the order dated April 4, 2013 is dismissed, as that orderwas superseded by the order dated November 25, 2013, made, in effect, uponreargument; and it is further,
Ordered that the order dated November 25, 2013 is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the respondent.
In 2005, the defendant City of New York Department of Housing Preservation andDevelopment (hereinafter HPD) issued a determination (hereinafter the HPDdetermination), after a hearing, granting the application of the defendant CadmanTowers, Inc., a Mitchell-Lama housing company, for a certificate of eviction against theplaintiff John Barry, the late John J. Holub, and the plaintiff Raymond Weinstein forviolation of the HPD primary residence rule (see 28 RCNY 3-02 [n] [4]). In aCPLR article 78 proceeding, this Court confirmed the HPD determination, as it wassupported by substantial evidence in the record (see Matter of Weinstein v City of N.Y. Dept. of Hous. Preserv.& Dev., 39 AD3d 764, 764 [2007]).
[*2] In 2012, Barry, Weinstein, individually and in hiscapacity as administrator of Holub's estate, and the plaintiff Marshal S. Weinsteincommenced this action alleging, inter alia, housing discrimination in violation of the FairHousing Act (42 USC § 3601 et seq.) (hereinafter the Act) andviolation of their due process rights pursuant to 42 USC § 1983. HPDmoved pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against it.By order dated April 4, 2013, the Supreme Court granted that branch of HPD's motionwhich was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst it as time-barred. By order dated November 25, 2013, the Supreme Court, ineffect, upon reargument, adhered to its original determination.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on the groundthat the complaint is barred by the applicable statute of limitations, the defendant bearsthe initial burden of establishing, prima facie, that the time in which to sue has expired.In this regard, the defendant must establish, inter alia, when the cause of action accrued(see Rodeo Family Enters., LLCv Matte, 99 AD3d 781, 783-784 [2012]; Swift v New York Med. Coll., 25 AD3d 686, 687 [2006];Gravel v Cicola, 297 AD2d 620, 620-621 [2002]). If the defendant satisfies thisburden, the burden shifts to the plaintiff to raise a question of fact as to whether thestatute of limitations was tolled or otherwise inapplicable, or whether the plaintiffactually commenced the action within the applicable limitations period (see Singh v Edelstein, 103AD3d 873, 875 [2013]; Rodeo Family Enters., LLC v Matte, 99 AD3d at784). Causes of action pursuant to the Act have a two-year statute of limitations (see42 USC § 3613 [a] [1] [A]), and causes of action pursuant to 42 USC§ 1983 have a three-year statute of limitations (see CPLR 214; Way v City of Beacon, 96AD3d 829, 832 [2012]; Matter of Greenfield v Town of Babylon Dept. of Assessment,76 AD3d 1071, 1073-1075 [2010]). Causes of action pursuant to 42 USC§ 1983 "accrue[ ] 'when the plaintiff knows or has reason to know of theinjury which is the basis of his action' " (Palmer v State of New York, 57 AD3d 364, 364 [2008],quoting Pearl v City of Long Beach, 296 F3d 76, 80 [2d Cir 2002]).
Here, HPD met its initial burden by establishing that the plaintiffs knew of theinjuries that formed the basis of their causes of action pursuant to 42 USC§ 1983 in 2005, that the alleged acts of housing discrimination occurred nolater than March 2005, and that this action was not commenced until July 2012, morethan seven years later. In opposition to HPD's showing that the complaint wastime-barred, the plaintiffs failed to raise a question of fact. Consequently, the SupremeCourt, in effect, upon reargument, properly adhered to its determination granting thatbranch of HPD's motion which was pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint insofar as asserted against it as time-barred.
HPD's remaining contentions either are not properly before this Court or need not bereached in light of our determination. Mastro, J.P., Leventhal, Cohen and LaSalle, JJ.,concur.