Papa v Fairfield on the Green

Papa v Fairfield on the Green 2014 NY Slip Op 08967 Decided on December 24, 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 December 24, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
COLLEEN D. DUFFY
BETSY BARROS, JJ.
2013-09202
(Index No. 15981/12)

[*1]Donna Papa, et al., respondents,

v

Fairfield on the Green, appellant.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant.

Dell & Dean, PLLC, Garden City, N.Y. (Jay J. Massaro of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for fraud, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated July 22, 2013, as denied its motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7).

ORDERED that the order is affirmed insofar as appealed from, with costs.

Accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, as we must on a motion pursuant to CPLR 3211(a)(7) (see Nonnon v City of New York, 9 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88; Tooma v Grossbarth, 121 AD3d 1093; Alva v Gaines, Gruner, Ponzini & Novick, LLP, 121 AD3d 724), the complaint sufficiently states, with the required particularity (see CPLR 3016[b]), a cause of action to recover damages for fraud (see Nerey v Greenpoint Mtge. Funding, Inc., 116 AD3d 1014, 1015; Vermont Mut. Ins. Co. v McCabe & Mack, LLP, 105 AD3d 837, 839-840; Camisa v Papaleo, 93 AD3d 623, 624-625). Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7).

Moreover, the Supreme Court also properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(5). In moving to dismiss a complaint pursuant to CPLR 3211(a)(5) as 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. The burden then shifts 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 Gould v Decolator, 121 AD3d 845; Matteawan On Main, Inc. v City of Beacon, 109 AD3d 590; Singh v Edelstein, 103 AD3d 873). Here, the defendant failed to meet its prima facie burden of establishing that the action was time-barred (see CPLR 213[8]; Chung v Wang, 79 AD3d 693, 694). Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(5).

RIVERA, J.P., ROMAN, DUFFY and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court