WEINGARD v. O'DONNELL

• Decision Date: 12 November 2002
• Parties: HARVEY WEINGARD, Respondent-Appellant,<BR>v.<BR>JUDITH M. O'DONNELL et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

299 A.D.2d 407

749 N.Y.S.2d 431

HARVEY WEINGARD, Respondent-Appellant,

v.JUDITH M. O'DONNELL et al., Appellants-Respondents.

Decided November 12, 2002.

Ritter, J.P., Florio, S. Miller and H. Miller, JJ., concur.

Ordered that the cross appeal from the order dated August 22, 2001, is dismissed, as the portion of the order cross-appealed from was superseded by the order dated January 4, 2002, made upon reargument; and it is further,

Ordered that the order dated August 22, 2001, is reversed insofar as appealed from, on the law, the motion is granted, and the complaint is dismissed; and it is further,

Ordered that the order dated January 4, 2002, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendants.

The plaintiff failed to rebut the defendants' prima facie showing that this action was commenced long after the expiration of the applicable six-year statute of limitations (see CPLR 213 [1]; Zuckerman v City of New York, 49 NY2d 557, 562; Mazzone v Mazzone, 269 AD2d 574). Accordingly, the defendants' motion for summary judgment should have been granted and the complaint dismissed.

The parties' remaining contentions either are without merit or need not be addressed in light of our determination.