State of N.Y. Higher Educ. Services Corp. v. Starr

• Citation: 551 N.Y.S.2d 363,158 A.D.2d 771
• Parties: STATE OF NEW YORK HIGHER EDUCATION SERVICES CORPORATION, Respondent, v. Jeffrey STARR, Appellant.
• Decision Date: 01 February 1990
• Court: New York Supreme Court Appellate Division

Page 363

551 N.Y.S.2d 363

158 A.D.2d 771

STATE OF NEW YORK HIGHER EDUCATION SERVICES CORPORATION, Respondent, v. Jeffrey STARR, Appellant.

Supreme Court, Appellate Division,

Third Department.

Feb. 1, 1990.

Harry Starr, Roslyn, for appellant.

Robert Abrams, Atty. Gen. (Richard J. Dorsey, of counsel), Albany, for respondent.

Before CASEY, J.P., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court (Harris, J.), entered March 28, 1989 in Albany County, which denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff commenced this action to recover the balance of defendant's student loan, which it was required to pay under the terms of its guarantee to the creditor bank. Following joinder of issue, defendant moved to dismiss the action as barred by the applicable Statute of Limitations. Supreme Court (Torraca, J.) denied the motion, the action proceeded through discovery and defendant again moved to dismiss the complaint upon the same ground. Supreme Court (Harris, J.) denied the motion as barred by law of the case. Defendant now appeals.

As a preliminary matter, we address the conflict of whether either or both of the motions were to dismiss the complaint, pursuant to CPLR 3211(a)(5), or, on the other hand, for summary judgment dismissing the complaint pursuant to CPLR 3212(b). In our view, where, as here, the date of accrual of the cause of action cannot be discerned from the face of the complaint, there is no meaningful distinction between the two. In such a case, regardless of the label placed upon the motion, the movant is required to support the motion with an affidavit or other competent proof sufficient, if uncontroverted, to establish the defense as a matter of law (see, Doyon v. Bascom, 38 A.D.2d 645, 326 N.Y.S.2d 896). Accomplishing that, the burden shifts to the plaintiff to come forward with evidence contrary to that submitted by the movant or otherwise tending to establish a tolling of the statute (see, id.; see also, Randustrial Corp. v. Acme Distrib. Center, 79 A.D.2d 862, 434 N.Y.S.2d 511). If the movant's initial showing is inadequate or if disputed facts exist, the court will either conduct an immediate trial of the issue (see, CPLR 3211 [c]; 3212[c] or deny the motion and leave resolution of the issue to the trier of fact (see, Bernstein v. La Rue, 120 A.D.2d 476, 501 N.Y.S.2d 896, lv. dismissed 70 N.Y.2d 746, 519 N.Y.S.2d 1032, 514 N.E.2d 390). In the latter event, the court does not make a legal determination as to the merit of the defense of Statute of Limitations; rather, it decides only that the merit of the defense cannot be determined on the evidence before it. Consistent therewith, Supreme Court denied the initial motion upon the ground that it was "deficient in that quantum of evidentiary facts which is necessary to obtain the relief requested".

It naturally follows that the doctrine of law of the case has no application here. That doctrine, applying exclusively to questions of law, makes a legal determination in a given case binding not only on the parties, but on all other judges of coordinate...