Schearer v. Fitzgerald

• Docket Number: s. 2021-07975,2021-07976,Index No. 514920/20
• Decision Date: 28 June 2023
• Parties: Elizabeth Schearer, respondent, v. Albion Fitzgerald, appellant.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03490

Elizabeth Schearer, respondent,
v.
Albion Fitzgerald, appellant.

Nos. 2021-07975, 2021-07976, Index No. 514920/20

Supreme Court of New York, Second Department

June 28, 2023

Clayman Rosenberg Kirshner & Linder LLP, New York, NY (Wayne E. Gosnell, Jr., Charles E. Clayman, and Eliel Talo of counsel), for appellant.

Merson Law, PLLC (Hasapidis Law Offices, South Salem, NY [Annette G. Hasapidis], of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from two orders of the Supreme Court, Kings County (George J. Silver, J.), both dated October 1, 2021. The orders denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the amended complaint.

ORDERED that the orders are affirmed, with one bill of costs.

The plaintiff commenced this action pursuant to the Child Victims Act (hereinafter the CVA) (see CPLR 214-g) to recover damages resulting from alleged acts of sexual abuse inflicted upon her by the defendant beginning in 1961, when the plaintiff was 4 years old and the defendant was 14 years old. Prior to answering, the defendant moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the amended complaint on the grounds that the defense of infancy provided by Penal Law § 30.00(1) bars revival of the plaintiff's causes of action under the CVA, the CVA violates the Due Process Clause of the New York and United States Constitutions, and the action is otherwise barred by the doctrine of laches. In two orders, both dated October 1, 2021, the Supreme Court denied the defendant's motion. The defendant appeals, and we affirm.

In reviewing a pre-answer motion to dismiss pursuant to CPLR 3211(a), "the court [must] 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Nonnon v City of New York, 9 N.Y.3d 825, 827, quoting Leon v Martinez, 84 N.Y.2d 83, 87-88). "Whether a plaintiff can ultimately establish [its] allegations is not part of the calculus" (Davila v Orange County, 215 A.D.3d 632, 633 [internal quotation marks omitted]; see Redwood Prop. Holdings, LLC v Christopher, 211 A.D.3d 758, 759). Moreover, on a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant "bears the initial burden of [establishing], prima facie, that the time in which to sue has expired" (Kogut v Village of Chestnut Ridge, 214 A.D.3d 777, 778 [internal quotation marks omitted]; see Listwon v 500 Metro. Owner, LLC, 188 A.D.3d 1028, 1029).

"CPLR 214-g, enacted as part of the CVA, provides a revival window for...