Stewart v. GDC Tower at Greystone

• Decision Date: 06 April 2016
• Docket Number: 2014-11349, Index No. 67780/13.
• Citation: Stewart v. GDC Tower at Greystone, 138 A.D.3d 729, 30 N.Y.S.3d 638, 2016 N.Y. Slip Op. 2641 (N.Y. App. Div. 2016)
• Parties: Curtis STEWART, appellant, v. GDC TOWER AT GREYSTONE, respondent.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 729

30 N.Y.S.3d 638

2016 N.Y. Slip Op. 02641

Curtis STEWART, appellant,

v.GDC TOWER AT GREYSTONE, respondent.

2014-11349, Index No. 67780/13.

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

April 6, 2016.

Curtis Stewart, New York, N.Y., appellant pro se.

L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for wrongful eviction and conversion, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Connolly, J.), dated September 17, 2014, as denied his motion pursuant to CPLR 3025(b) for leave to amend the complaint to add additional defendants and granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired (see J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652, 653, 990 N.Y.S.2d 223 ; Fleetwood Agency, Inc. v. Verde Elec. Corp., 85 A.D.3d 850, 925 N.Y.S.2d 576 ; Sabadie v. Burke, 47 A.D.3d 913, 914, 849 N.Y.S.2d 440 ).

Only then does the burden shift to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period (see Reid v. Incorporated Vil. of Floral Park, 107 A.D.3d 777, 778, 967 N.Y.S.2d 135 ; Williams v. New York City Health & Hosps. Corp., 84 A.D.3d 1358, 1359, 923 N.Y.S.2d 908 ).

An action alleging conversion must be commenced within three years of the date of the conversion (see CPLR 214[3] ; Mariano v. Fiorvante, 118 A.D.3d 961, 962, 989 N.Y.S.2d 55 ), and an action alleging wrongful eviction must be commenced within one year of the date of the eviction (see CPLR 215[7] ; Urra v. Friedman, 231 A.D.2d 710, 710, 648 N.Y.S.2d 41 ; Klishwick v. Popovicki,

186 A.D.2d 173, 174, 587 N.Y.S.2d 955 ).

Here, the defendant demonstrated, prima facie, that the plaintiff's time in which to commence this action had expired (see J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d at 653, 990 N.Y.S.2d 223 ; Gkanios v. D'Ambrosio, 271 A.D.2d 488, 706 N.Y.S.2d 910 ; Urra v. Friedman, 231 A.D.2d at 710, 648 N.Y.S.2d 41 ). In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether he actually commenced the action within the applicable limitations period (see Reid v. Incorporated Vil. of Floral Park, 107 A.D.3d at 778, 967 N.Y.S.2d 135 ; Williams...