Gravel v. Cicola
| Decision Date | 09 September 2002 |
| Citation | 297 A.D.2d 620,747 N.Y.S.2d 33 |
| Parties | ROBERT J. GRAVEL, JR., et al., Respondents,<BR>v.<BR>ROBERT A. CICOLA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
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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