Assad v. City of New York

Decision Date21 April 1997
Citation656 N.Y.S.2d 669,238 A.D.2d 456
PartiesFaried ASSAD, Appellant, v. CITY OF NEW YORK, et al., Defendants, Frank Sarayli, Respondent.
CourtNew York Supreme Court — Appellate Division

Mallow, Konstam & Hager, P.C., New York City, (David M. Mallow, of counsel), for appellant.

Lysaght, Lysaght & Kramer, P.C., Lake Success, (Raymond E. Kerno, of counsel), for respondent.

Before BRACKEN, J.P., and MILLER, SULLIVAN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for assault and false arrest, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated May 14, 1996, which granted the motion of the respondent Frank Sarayli to dismiss the complaint insofar as asserted against him as time-barred.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the respondent.

When a party moves to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, that party bears the initial burden of establishing the affirmative defense by prima facie proof that the time in which to sue has expired (see, Siegel v. Wank, 183 A.D.2d 158, 589 N.Y.S.2d 934; Hoosac Val. Farmers Exch. v. AG Assets, 168 A.D.2d 822, 823, 563 N.Y.S.2d 954; Doyon v. Bascom, 38 A.D.2d 645, 326 N.Y.S.2d 896). In the instant case, the respondent met his burden by demonstrating that the claim was not interposed against him within the applicable one-year period of limitations (see, CPLR 215[3] ). Thereafter, the burden was upon the plaintiff "to aver evidentiary facts" establishing that the case falls within an exception to the Statute of Limitations (see, Siegel v. Wank, supra, at 159, 589 N.Y.S.2d 934; Hoosac Val. Farmers Exch. v. AG Assets, supra, at 824, 563 N.Y.S.2d 954).

Contrary to the conclusion of the Supreme Court, the plaintiff adduced sufficient evidentiary facts which give rise to issues of fact as to whether the respondent was acting within the scope of his employment as a New York City Police Officer when he allegedly participated in the assault upon, and the false arrest of, the plaintiff. As such, "whether the [respondent] is united in interest with his employer, the defendant City of New York (which was timely served with process), for Statute of Limitations purposes (see, CPLR 203[b] ), cannot be determined at this juncture" (Sargent v. City of...

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  • State Workers' Comp. Bd. v. Wang
    • United States
    • New York Supreme Court — Appellate Division
    • January 5, 2017
    ...to plaintiff to raise a question of fact as to whether the statutes of limitations should be tolled (see Assad v. City of New York, 238 A.D.2d 456, 456–457, 656 N.Y.S.2d 669 [1997], lv. dismissed 91 N.Y.2d 848, 667 N.Y.S.2d 683, 690 N.E.2d 492 [1997] ; Doyon v. Bascom, 38 A.D.2d 645, 645–64......
  • Quinones v. Neighborhood Youth & Family Services, Inc., 2008 NY Slip Op 31795(U) (N.Y. Sup. Ct. 4/21/2008)
    • United States
    • New York Supreme Court
    • April 21, 2008
    ...burden of establishing the affirmative defense by prima facie proof that the time in which to sue has expired." Assad v. City of New York, 238 A.D.2d 456 (2nd Dept.1997); see, also, Rosenfeld v. Schlecker, 5 A.D.3d 461 (2nd Dept. 2004); Siegel v. Wank, 183 A.D.2d 158 (3rd Dept.1992). "The b......
  • Port Authority of New York and New Jersey v. Evergreen Intern. Aviation, Inc.
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    • New York Supreme Court
    • January 22, 1999
    ...burden of establishing the affirmative defense by prima facie proof that the time in which to sue has run. (Assad v. City of New York, 238 A.D.2d 456, 656 N.Y.S.2d 669; Siegel v. Wank, 183 A.D.2d 158, 589 N.Y.S.2d 934.) Once this burden is satisfied, the burden shifts to the plaintiff to av......
  • Pericon v Ruck, 2007 NY Slip Op 32535(U) (N.Y. Sup. Ct. 8/8/2007)
    • United States
    • New York Supreme Court
    • August 8, 2007
    ...burden of establishing the affirmative defense by prima facie proof that the time in which to sue has expired." Assad v. City of New York, 238 A.D.2d 456 (2nd Dept.1997); see, also, Rosenfeld v. Schlecker, 5 A.D.3d 461 (2nd Dept. 2004); Siegel v. Wank, 183 A.D.2d 158 (3rd Dept.1992). "The b......
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