Hoosac Valley Farmers Exchange, Inc. v. AG Assets, Inc.

• Decision Date: 20 December 1990
• Citation: 168 A.D.2d 822,563 N.Y.S.2d 954
• Parties: HOOSAC VALLEY FARMERS EXCHANGE, INC., Appellant, v. AG ASSETS, INC., Formerly Agricultural Assets Management Company, Inc., et al., Defendants, and Fred Adler, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 954

563 N.Y.S.2d 954

168 A.D.2d 822

HOOSAC VALLEY FARMERS EXCHANGE, INC., Appellant, v. AG ASSETS, INC., Formerly Agricultural Assets Management Company, Inc., et al., Defendants and Fred Adler, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 20, 1990.

Pattison, Sampson, Ginsberg & Griffen, P.C. (Gerald H. Katzman, of counsel), Troy, for appellant.

Fulbright, Jaworski & Reavis McGrath (Edward Dolido, of counsel), New York City, for respondent.

Before KANE, J.P., and CASEY, LEVINE, MERCURE and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Dier, J.), entered January 17, 1990 in Washington County, which granted defendant Fred Adler's motion to dismiss the complaint against him as barred by the Statute of Limitations.

In March 1982, plaintiff secured a judgment against Roy Everts in the amount of $73,965.80, which represented the amount due and owing for goods and farming materials Everts had purchased on credit from plaintiff. Plaintiff allegedly sold the goods to Everts in the belief that Everts was using the goods to feed and care for cattle that he owned. Thereafter, in August 1982, plaintiff contends that he learned that the cattle raised and maintained by Everts were owned by defendant AG Assets, Inc. and/or its investors, and not by Everts himself. Plaintiff then commenced this action against AG Assets, Inc. on January 5, 1983 seeking to recover for the goods delivered to Everts. More than four years later, in March 1987, plaintiff prepared a supplemental summons and complaint naming as additional defendants in the suit certain investors in AG Assets, Inc., including defendant Fred Adler. Adler was not served by plaintiff until August 17, 1989. Rather than answer the complaint, Adler moved to dismiss the action against himself, alleging the Statute of Limitations as a complete defense. Supreme Court granted the motion and plaintiff appeals.

The sole question to be determined on this appeal is whether plaintiff's claims against Adler were interposed as of January 5, 1983, the date the original summons was served upon AG Assets, Inc., or upon August 17, 1989, when Adler was actually served. In the event it is determined that Supreme Court correctly determined that the latter date applies, plaintiff concedes in his brief that the action against Adler is time barred. Nonetheless, plaintiff claims that AG Assets, Inc. was Adler's agent and, therefore, the two were so "united in interest" that the claim against Adler should relate back to the date the claim was originally interposed against AG Assets, Inc. in accordance with CPLR 203(b). We cannot agree with this assertion.

When a party moves pursuant to CPLR 3211(a)(5) for a judgment dismissing a claim on the ground that it is barred by the Statute of Limitations, it is that party's burden initially to establish the affirmative defense by prima facie proof that the Statute of Limitations had elapsed (see, Doyon v. Bascom, 38 A.D.2d 645, 645-646, 326 N.Y.S.2d 896). This burden does not include an obligation on the moving party's part to negate any or all exceptions that might apply to the statutory period (id., at 646, 326 N.Y.S.2d 896). Instead, the burden shifts to the party opposing the motion to aver evidentiary facts establishing that the case at hand falls within such exceptions (id.; see, Waters of Saratoga Springs v. State of New York, 116 A.D.2d 875, 878, 498 N.Y.S.2d 196, aff'd 68 N.Y.2d 777, 506 N.Y.S.2d 673, 498 N.E.2d 146). The proof attached to Adler's moving papers in the instant case sufficiently established that Adler was served with process over seven years after plaintiff's causes of action accrued. Since plaintiff's causes of action basically alleging, among other things, fraud and/or breach of contract had to be commenced at least within six years of their accrual (see, CPLR 213), a prima facie defense was presented and the burden shifted to pl...