Swift v. New York Medical College

• Decision Date: 24 January 2006
• Docket Number: 2005-02972.
• Citation: 808 N.Y.S.2d 731,25 A.D.3d 686,2006 NY Slip Op 00501
• Parties: MICHAEL SWIFT, Appellant, v. NEW YORK MEDICAL COLLEGE, Respondent.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 686

808 N.Y.S.2d 731

2006 NY Slip Op 00501

MICHAEL SWIFT, Appellant, v. NEW YORK MEDICAL COLLEGE, Respondent.

2005-02972.

Appellate Division of the Supreme Court of the State of New York, Second Department.

January 24, 2006.

In an action, inter alia, to recover damages for breach of an employment contract, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Murphy, J.), entered February 16, 2005, as granted those branches of the defendant's motion which were to dismiss the fourth and eighth causes of action and denied those branches of his cross motion which were for leave to amend those causes of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the defendant's motion which were to dismiss the fourth and eighth causes of action are denied, and those branches of the plaintiff's cross motion which were for leave to amend those causes of action are granted.

As alleged in the complaint, the plaintiff was hired by the defendant in September 1992 as a professor and director of the defendant's Institute for the Genetic Analysis of Common Diseases. The plaintiff's employment was terminated effective December 31, 2001, and this action followed.

In his fourth cause of action, the plaintiff claims that certain clinical funding in the amount of $8,333.33, owed to him for the months of May 1998 and June 1998, was never paid by the defendant. In the eighth cause of action, the plaintiff alleges that the defendant, in violation of the New York Medical College Intellectual Property Policy, dated October 1, 1998 (hereinafter the Policy), failed to waive, in favor of the plaintiff, its right to patent and commercialize certain intellectual property discovered by the plaintiff.

Before serving its answer, the defendant moved, inter alia, to dismiss the fourth cause of action as barred by the six-year statute of limitations (see CPLR 213 [1]; 3211 [a] [5]), and to dismiss the eighth cause of action for failure to state a claim (CPLR 3211 [a] [7]). The plaintiff opposed the motion and cross-moved, inter alia, for leave to amend those causes of action. The Supreme Court granted those branches of the motion and denied those branches of the cross motion. We reverse.

"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" (Savarese v Shatz, 273 AD2d 219, 220 [2000]). Only if such prima facie showing is made will the burden then shift to the plaintiff to "aver evidentiary facts establishing that the case falls within an exception to the Statute of Limitations" (id. at 220 [citations and internal quotation marks omitted]).

In order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiff's cause of action accrued. Where, as here, the claim is for payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff "possesses a legal right to demand payment" (Matter of Prote Contr. Co. v Board of Educ. of City of N.Y., 198 AD2d 418, 420 [1993]).

The defendant contends that the fourth cause of action accrued on July 1, 1998. However, it offered no evidence, documentary or otherwise, to establish that the plaintiff had...