| Stewart v GDC Tower at Greystone |
| 2016 NY Slip Op 02641 [138 AD3d 729] |
| April 6, 2016 |
| Appellate Division, Second Department |
[*1]
| Curtis Stewart, Appellant, v GDC Tower atGreystone, Respondent. |
Curtis Stewart, New York, NY, appellant pro se.
In an action to recover damages for wrongful eviction and conversion, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court,Westchester County (Connolly, J.), dated September 17, 2014, as denied his motionpursuant to CPLR 3025 (b) for leave to amend the complaint to add additionaldefendants and granted that branch of the defendant's cross motion which was pursuantto CPLR 3211 (a) (5) to dismiss the complaint.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it isbarred by the applicable statute of limitations, a defendant bears the initial burden ofdemonstrating, prima facie, that the time within which to commence the action hasexpired (see J.A. Lee Elec., Inc.v City of New York, 119 AD3d 652, 653 [2014]; Fleetwood Agency, Inc. v VerdeElec. Corp., 85 AD3d 850 [2011]; Sabadie v Burke, 47 AD3d 913, 914 [2008]). Only thendoes the burden shift to the plaintiff to raise a question of fact as to whether the statute oflimitations was tolled or was otherwise inapplicable, or whether it actually commencedthe action within the applicable limitations period (see Reid v Incorporated Vil. of Floral Park, 107 AD3d 777,778 [2013]; Williams v NewYork City Health & Hosps. Corp., 84 AD3d 1358, 1359 [2011]).
An action alleging conversion must be commenced within three years of the date ofthe conversion (see CPLR 214 [3]; Mariano v Fiorvante, 118 AD3d 961, 962 [2014]), and anaction alleging wrongful eviction must be commenced within one year of the date of theeviction (see CPLR 215 [7]; Urra v Friedman, 231 AD2d 710, 710[1996]; Klishwick v Popovicki, 186 AD2d 173, 174 [1992]).
Here, the defendant demonstrated, prima facie, that the plaintiff's time in which tocommence this action had expired (see J.A. Lee Elec., Inc. v City of New York,119 AD3d at 653; Gkanios v D'Ambrosio, 271 AD2d 488 [2000]; Urra vFriedman, 231 AD2d at 710). In opposition, the plaintiff failed to raise a question offact as to whether the statute of limitations was tolled or was otherwise inapplicable, orwhether he actually commenced the action within the applicable limitations period(see Reid v Incorporated Vil. of Floral Park, 107 AD3d at 778; Williams vNew York City Health & Hosps. Corp., 84 AD3d at 1359).
Accordingly, the Supreme Court properly denied the plaintiff's motion for leave toamend the complaint to add additional defendants and granted that branch of thedefendant's cross [*2]motion which was pursuant toCPLR 3211 (a) (5) to dismiss the complaint. Hall, J.P., Austin, Sgroi and LaSalle, JJ.,concur.