Barry v. Cadman Towers, Inc.

• Decision Date: 24 February 2016
• Citation: 136 A.D.3d 951,25 N.Y.S.3d 342
• Parties: John BARRY, et al., appellants, v. CADMAN TOWERS, INC., et al., defendants, City of New York Department of Housing Preservation and Development, respondent.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 951

25 N.Y.S.3d 342

John BARRY, et al., appellants,

v. CADMAN TOWERS, INC., et al., defendants,City of New York Department of Housing Preservation and Development, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 24, 2016.

Robert M. Rambadadt, New York, NY, for appellants.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Michael J. Pastor of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and HECTOR D. LaSALLE, JJ.

In an action, inter alia, to recover damages for housing discrimination based on disability in violation of, among other things, the Fair Housing Act (42 U.S.C. § 3601 et seq. ), and for violation of due process rights pursuant to 42 U.S.C. § 1983, the plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Landicino, J.), dated April 4, 2013, which granted that branch of the motion of the defendant City of New York Department of Housing Preservation and Development which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred, and (2), as limited by their brief, from so much of an order 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ORDERED that the appeal from the order dated April 4, 2013, is dismissed, as that order was superseded by the order dated November 25, 2013, made, in effect, upon reargument; and it is further,

ORDERED that the order dated November 25, 2013, is affirmed insofar as appealed from; 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 and Development (hereinafter HPD) issued a determination (hereinafter the HPD determination), after a hearing, granting the application of the defendant Cadman Towers, Inc. (hereinafter Cadman Towers), a Mitchell–Lama housing company, for a certificate of eviction against the plaintiff John Barry, the late John J. Holub, and the plaintiff Raymond Weinstein for violation of the HPD primary residence rule (see 28 RCNY 3–02[n][4] ). In a CPLR article 78 proceeding, this Court confirmed the HPD determination, as it was supported by substantial evidence in the record (see Matter of Weinstein v. City of N.Y. Dept. of Hous. Preserv. & Dev., 39 A.D.3d 764, 764, 832 N.Y.S.2d 443 ).

In 2012, Barry, Weinstein, individually and in his capacity as administrator of Holub's estate, and the plaintiff Marshal S. Weinstein commenced this action alleging, inter alia, housing discrimination in violation of the Fair Housing Act (42 U.S.C. § 3601 et seq. ) (hereinafter the Act) and violation of their due process rights pursuant to 42 U.S.C. § 1983. HPD moved 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 motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred. By order dated November 25, 2013, the Supreme Court, in effect, upon reargument, adhered to its original determination.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the complaint is barred by the applicable statute of limitations, the defendant bears the 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., LLC v. Matte, 99 A.D.3d 781, 783–784, 952 N.Y.S.2d 581 ; Swift v. New York Med. Coll., 25 A.D.3d 686, 687, 808 N.Y.S.2d 731 ; Gravel v. Cicola, 297 A.D.2d 620, 620–621, 747 N.Y.S.2d 33 ). If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period (see Singh v. Edelstein, 103 A.D.3d 873, 875, 962 N.Y.S.2d 225 ; Rodeo Family Enters., LLC v. Matte, 99 A.D.3d at 784, 952 N.Y.S.2d 581 ). Causes of...