| Geotech Enters., Inc. v 181 Edgewater, LLC |
| 2016 NY Slip Op 02325 [137 AD3d 1213] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| Geotech Enterprises, Inc., et al.,Respondents, v 181 Edgewater, LLC, Appellant. |
Menicucci Villa Cilmi, PLLC, Staten Island, NY (Jeremy Panzella of counsel), forappellant.
Sipsas P.C., Astoria, NY (John P. Sipsas of counsel), for respondent.
In an action, inter alia, to recover damages for conversion, the defendant appealsfrom so much of an order of the Supreme Court, Queens County (Kitzes, J.), enteredApril 20, 2015, as denied that branch of its motion which was pursuant to CPLR 3211 (a)(5) to dismiss the second cause of action as time-barred.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (5) todismiss the second cause of action as time-barred is granted.
In 2008, the plaintiffs entered into a contract with nonparty Nevins Group, LLC(hereinafter Nevins), to install pile drilling and load testing equipment at a constructionsite in Brooklyn. In 2010, after a dispute with Nevins, the plaintiffs ceased performingwork at the construction site. On October 21, 2010, Nevins removed the plaintiffs'equipment and machinery from the worksite and placed them in a storage facility ownedby the defendant.
The plaintiffs then commenced an action against Nevins to recover damages forbreach of contract, and subsequently commenced a second action against Nevins seekingreplevin of its equipment and machinery. On February 14, 2011, during the course ofdiscovery in those actions, the plaintiffs learned, allegedly for the first time, that theirequipment and machinery were stored at the defendant's property. They were thereafterprovided with copies of the defendant's invoices billing Nevins for storage. In 2011, theplaintiffs commenced a third action against Nevins, the defendant, and another party torecover damages for fraud and conversion.
In July 2014, the plaintiffs commenced this action against the defendant, inter alia, torecover damages for conversion, as alleged in the second cause of action, asserting thatthe defendant removed and secreted their equipment and machinery.
The defendant moved, inter alia, pursuant to CPLR 3211 (a) (5) to dismiss thesecond cause of action. The defendant argued that the applicable three-year statute oflimitations had run prior to the commencement of this action. The Supreme Court, interalia, denied that branch of the motion. The defendant appeals.
[*2] To dismiss a cause of action pursuant to CPLR 3211(a) (5) on the ground that it is barred by the statute of limitations, a defendant bears theinitial burden of establishing prima facie that the time in which to sue has expired (see J.A. Lee Elec., Inc. v City ofNew York, 119 AD3d 652, 653 [2014]; Sabadie v Burke, 47 AD3d 913, 914 [2008]; Swift v New York Med. Coll.,25 AD3d 686, 687 [2006]; Savarese v Shatz, 273 AD2d 219, 220 [2000]).Once the defendant meets its prima facie burden, the burden then shifts "to the plaintiffto raise a question of fact as to whether the statute of limitations was tolled or wasotherwise inapplicable, or whether it actually commenced the action within theapplicable limitations period" (J.A. Lee Elec., Inc. v City of New York, 119AD3d at 653).
Here, the defendant made a prima facie showing that the conversion cause of actionwas time-barred under the three-year statute of limitations applicable to conversionclaims (see CPLR 214 [3]), inasmuch as the complaint demonstrates that morethan three years had elapsed between the date of the alleged conversion of the plaintiffs'property and the commencement of this action (see Muscat v Mid-Hudson Med. Group, P.C., 135 AD3d915, 916 [2016]; Village ofLindenhurst v J.D. Posillico, Inc., 94 AD3d 1101, 1101 [2012], affd 22NY3d 1024 [2013]; see alsoTexeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2007]).
In opposition, the plaintiffs failed to raise a question of fact as to whether the statuteof limitations was tolled, or whether this action to recover damages was commencedwithin the applicable limitations period. "[A] cause of action to recover damages forconversion accrues on the date the conversion occurs" (City Store Gates Mfg. Corp. vEmpire Rolling Steel Gates Corp., 113 AD3d 718, 719 [2014]; see Malanga v Chamberlain, 71AD3d 644, 645-646 [2010]). The plaintiffs assert that the conversion cause of actiondid not accrue until the date of Hurricane Sandy, October 29, 2012, during which, theyallege, their equipment and machinery sustained damage when it was left at thedefendant's property on Staten Island, and that they did not know that the defendant'spossession of their equipment and machinery was hostile until after the hurricaneoccurred. These assertions do not raise a question of fact as to whether the conversioncause of action accrued within the applicable limitations period or whether the statute oflimitations period was tolled (see Sporn v MCA Records, 58 NY2d 482, 487[1983]; Davidson v Fasanella, 269 AD2d 351, 352 [2000]).
Accordingly, the Supreme Court should have granted that branch of the defendant'smotion which was pursuant to CPLR 3211 (a) (5) to dismiss the second cause of action.Dillon, J.P., Dickerson, Austin and Duffy, JJ., concur.