McDonald v. Riccuiti

• Decision Date: 25 March 2015
• Docket Number: 2013-05530
• Citation: 126 A.D.3d 954,6 N.Y.S.3d 134,2015 N.Y. Slip Op. 02460
• Parties: Patrick McDONALD, appellant, v. Michael RICCUITI, et al., respondents.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 954

6 N.Y.S.3d 134

2015 N.Y. Slip Op. 02460

Patrick McDONALD, appellant

v.Michael RICCUITI, et al., respondents.

2013-05530

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

March 25, 2015.

Joseph C. Stroble, Sayville, N.Y., for appellant.

Schondebare & Korcz, Ronkonkoma, N.Y. (Amy B. Korcz of counsel), for respondents.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and HECTOR D. LaSALLE, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Asher, J.), dated April 11, 2013, as granted those branches of the defendants' motion which were for summary judgment dismissing the third, fourth, and fifth causes of action in the complaint as time-barred.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiff's contention, the Supreme Court properly granted those branches of the defendants' motion which were for summary judgment dismissing the third, fourth, and fifth causes of action as barred by the one-year statute of limitations applicable to intentional torts (see CPLR 215[3] ). In determining which limitations period is applicable to a given cause of action, the court must look to the substance of the allegations rather than to the characterization of those allegations by the parties (see Western Elec. Co. v. Brenner, 41 N.Y.2d 291, 293, 392 N.Y.S.2d 409, 360 N.E.2d 1091 ; Doe v. Jacobs, 19 A.D.3d 641, 642, 797 N.Y.S.2d 293 ; Rutzinger v. Lewis, 302 A.D.2d 653, 654, 754 N.Y.S.2d 735 ). The factual allegations of the third, fourth, and fifth causes of action clearly set forth only intentional tortious conduct on the part of the defendants (see e.g. Cagliostro v. Madison Sq. Garden, Inc., 73 A.D.3d 534, 535, 901 N.Y.S.2d 222 ; Schetzen v. Robotsis, 273 A.D.2d 220, 220–221, 709 N.Y.S.2d 193 ; Friedman v. Gallinelli, 240 A.D.2d 699, 700, 659 N.Y.S.2d 317 ), governed by the one-year limitations period of CPLR 215(3). The defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that this action was not commenced until after the running of the applicable statute of limitations (see CPLR 215[3] ; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Goetz–Haddad v. Pathmark Supermarkets, 13 A.D.3d 480, 786 N.Y.S.2d 310 ; Schetzen v. Robotsis, 273 A.D.2d 220, 221, 709 N.Y.S.2d 193 ; Wertzberger v. City of New York, 254 A.D.2d 352, 680 N.Y.S.2d 260 ; Friedman v. Gallinelli, 240 A.D.2d 699, 700, 659 N.Y.S.2d 317 ).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff could not avoid the running of the limitations period merely by attempting to couch the causes of action as sounding...