Summary
affirming denied dismissal motion
Summary of this case from Am. Water Restoration, Inc. v. AKF Inc.Opinion
64 CA 17–01126
04-27-2018
Jackie S. COLLINS, Plaintiff–Respondent, v. Katie A. DAVIRRO, Defendant–Appellant, and Orleans/Niagara Board of Cooperative Educational Services, Defendant.
HURWITZ & FINE, P.C., BUFFALO (TODD C. BUSHWAY OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM MATTAR, P.C., WILLIAMSVILLE (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
HURWITZ & FINE, P.C., BUFFALO (TODD C. BUSHWAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM MATTAR, P.C., WILLIAMSVILLE (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Katie A. Davirro (defendant) appeals from an order that, inter alia, denied her pre-answer motion to dismiss the complaint against her on the ground that the action was not commenced against her within the one-year and 90–day statute of limitations period set forth in General Municipal Law § 50–i(1)(c). Plaintiff commenced this action against defendant seeking damages for injuries that she allegedly sustained as the result of a motor vehicle collision between a vehicle operated by plaintiff and a vehicle owned and operated by defendant. Defendant's employer, defendant Orleans/Niagara Board of Cooperative Educational Services (BOCES), was added as a defendant after the entry of the order appealed from. We affirm.
In reviewing this pre-answer motion to dismiss pursuant to CPLR 3211, we must "accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). Furthermore, "[o]n a motion 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" ( Island ADC, Inc. v. Baldassano Architectural Group, P.C., 49 A.D.3d 815, 816, 854 N.Y.S.2d 230 [2d Dept. 2008] ; see Loscalzo v. 507–509 President St. Tenants Assn. Hous. Dev. Fund Corp., 153 A.D.3d 614, 615, 57 N.Y.S.3d 427 [2d Dept. 2017], lv denied 30 N.Y.3d 905, 2017 WL 5615728 [2017] ).
Here, defendant alleged that the complaint against her was time-barred because she was acting within the scope of her employment, and thus the limitations period set forth in the General Municipal Law is applicable. Defendant is correct that, if she was acting in the performance of her duties and within the scope of her employment when she committed the alleged tort, BOCES must indemnify her for damages arising therefrom (see Education Law § 3023 ; see generally Clark v. City of Ithaca, 235 A.D.2d 746, 747, 652 N.Y.S.2d 819 [3d Dept. 1997] ). Furthermore, if BOCES must indemnify defendant, then BOCES "is the real party in interest and General Municipal Law § 50–i(1)(c) applies to the ... cause of action against" defendant ( Ruggiero v. Phillips, 292 A.D.2d 41, 44, 739 N.Y.S.2d 797 [4th Dept. 2002] ). Nevertheless, "[w]hether an employee was acting within the scope of his or her employment is generally a question of fact for the jury" ( Gui Ying Shi v. McDonald's Corp., 110 A.D.3d 678, 679, 972 N.Y.S.2d 307 [2d Dept. 2013] ) and, contrary to defendant's contention, the evidence that she submitted in support of her motion failed to establish as a matter of law that she was acting within the scope of her employment when the collision occurred.
Contrary to defendant's further contention, there is a triable question of fact whether she is barred by the doctrine of equitable estoppel from raising a statute of limitations defense (see generally Richey v. Hamm, 78 A.D.3d 1600, 1603, 910 N.Y.S.2d 791 [4th Dept. 2010] ). Under that doctrine, "a defendant is estopped from pleading a statute of limitations defense if the ‘plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action’ " ( Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 491, 836 N.Y.S.2d 509, 868 N.E.2d 189 [2007], quoting Simcuski v. Saeli, 44 N.Y.2d 442, 449, 406 N.Y.S.2d 259, 377 N.E.2d 713 [1978] ; see Putter v. North Shore Univ. Hosp., 7 N.Y.3d 548, 552–553, 825 N.Y.S.2d 435, 858 N.E.2d 1140 [2006] ), and the plaintiff's reliance on the fraud, misrepresentations or deception was reasonable (see Putter, 7 N.Y.3d at 552–553, 825 N.Y.S.2d 435, 858 N.E.2d 1140 ). "Although there are exceptions, ‘the question of whether a defendant should be equitably estopped is generally a question of fact’ " ( Local No. 4, Intl. Assn. of Heat & Frost & Asbestos Workers v. Buffalo Wholesale Supply Co., Inc., 49 A.D.3d 1276, 1278, 854 N.Y.S.2d 610 [4th Dept. 2008], quoting Putter, 7 N.Y.3d at 553, 825 N.Y.S.2d 435, 858 N.E.2d 1140 ). Here, we conclude that "[p]laintiff set forth sufficient factual allegations of defendant['s] affirmative acts of deception to raise a triable issue of fact whether the doctrine of equitable estoppel should apply to toll the [s]tatute of [l]imitations" ( Niagara Mohawk Power Corp. v. Freed, 265 A.D.2d 938, 940, 696 N.Y.S.2d 600 [4th Dept. 1999] ; cf. Lohnas v. Luzi [Appeal No. 2], 140 A.D.3d 1717, 1719, 33 N.Y.S.3d 637 [4th Dept. 2016], affd 30 N.Y.3d 752, 71 N.Y.S.3d 404, 94 N.E.3d 892 [2018] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.