Hemmings v Gapihan

Hemmings v Gapihan 2014 NY Slip Op 02561 Decided on April 16, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 16, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
PLUMMER E. LOTT
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2012-09209
(Index No. 16022/10)

[*1]Thomas Hemmings, appellant,

v

Grace Hemmings Gapihan, respondent.




Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for
appellant.
Arnold J. Ludwig, Brooklyn, N.Y., for respondent.


DECISION & ORDER

In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Kings County (King, J.), dated July 31, 2012, which granted the defendant's motion, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint. The defendant established, prima facie, that the action was untimely in that it was not commenced within the one-year statute of limitations applicable to actions for defamation (see CPLR 215[3], 207; Wilson v Erra, 94 AD3d 756). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled (see Bullfrog, LLC v Nolan, 102 AD3d 719; New York State Higher Educ. Servs. Corp., 168 AD2d 752).

In light of our determination, we need not address the plaintiff's remaining contentions.
MASTRO, J.P., LOTT, SGROI and LASALLE, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court