Gravel v. Cicola

Decision Date09 September 2002
Citation297 A.D.2d 620,747 N.Y.S.2d 33
PartiesROBERT J. GRAVEL, JR., et al., Respondents,<BR>v.<BR>ROBERT A. CICOLA, Appellant.
CourtNew York Supreme Court — Appellate Division

Krausman, J.P., Goldstein, McGinity and Adams, JJ., concur.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the complaint as time-barred on the ground that the applicable three-year statute of limitations was tolled by the defendant's ongoing representation of the plaintiffs, and substituting therefor a provision denying that branch of the motion on the ground that there are triable issues of fact regarding whether the statute of limitations was tolled by the defendant's ongoing representation of the plaintiffs; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired (see Duran v Mendez, 277 AD2d 348; Savarese v Shatz, 273 AD2d 219, 220; Assad v City of New York, 238 AD2d 456; Siegel v Wank, 183 AD2d 158, 159). Here, the defendant sustained this initial burden by offering evidentiary proof that the malpractice complained of occurred on February 18, 1997, when he allegedly erroneously advised the plaintiffs that the property they intended to purchase was benefitted by an easement, and that this action was not commenced until on or about October 18, 2000, after the expiration of the three-year limitations period (see CPLR 214 [6]). The burden thus shifted to the plaintiffs to aver evidentiary facts establishing that their cause of action falls within an exception to the statute of limitations, or to raise an issue of fact as to whether such an exception applies (see Duran v Mendez, supra; Assad v City of New York, supra; Siegel v Wank, supra). Contrary to the defendant's contention, the evidentiary facts submitted by the plaintiffs were sufficient to raise an issue of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation because the defendant was performing services in an attempt to rectify the alleged act of malpractice (see Pellati v Lite & Lite, 290 AD2d 544, 545; Kuritzky v Sirlin & Sirlin, 231 AD2d 607; Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507; Stampfel v Eckhardt, 143 AD2d 184).

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    • 18 d4 Fevereiro d4 2021
    ...Weiss, 120 A.D.3d 1550, 1552–1553 [2014], 993 N.Y.S.2d 396 ; Deep v. Boies, 53 A.D.3d at 952, 863 N.Y.S.2d 269 ; Gravel v. Cicola, 297 A.D.2d 620, 621, 747 N.Y.S.2d 33 [2002] ). Accordingly, although plaintiff was not entitled to summary judgment granting dismissal of the statute of limitat......
  • Collateral Loanbrokers Ass'n of N.Y., Inc. v. City of N.Y.
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    • 3 d3 Junho d3 2015
    ...expired prior to the commencement of the action (Swift v. New York Medical College, 25 AD3d 686, 687 [2d Dept 2006] ; Gravel v. Cicola, 297 A.D.2d 620, 620 [2d Dept 2002] ; Duran v. Mendez, 277 A.D.2d 348, 348 [2d Dep 2000] ). If defendant meets his burden, in order to avoid dismissal, it i......
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    ...of limitations. It is plaintiffs' burden to prove the doctrine's applicability to the facts of this matter. Gravel v. Cicola , 297 A.D.2d 620, 747 N.Y.S.2d 33, 34 (2002). “The two prerequisites for continuous representation tolling are a claim of misconduct concerning the manner in which pr......
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    ...cross claims were untimely ( seeCPLR 214[6]; 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). The burden then shifted to OBG to raise a question of fact as to whether the statute of limitations was tolled or was ......
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