Opinion
698 CA 22-01644
11-17-2023
Patrick HARDEN and Katherine Harden, Plaintiffs-Appellants, v. David N. WEINRAUB, Brown and Weinraub, PLLC, Lindsay Robinson and Jodi Lynn McKay, Defendants-Respondents.
MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (SHARON STERN GERSTMAN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. PILLINGER MILLER TARALLO, LLP, BUFFALO (KENNETH A. KRAJEWSKI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS DAVID N. WEINRAUB AND BROWN AND WEINRAUB, PLLC. LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (MARTHA E. DONOVAN OF COUNSEL), FOR DEFENDANT-RESPONDENT LINDSAY ROBINSON. NASH CONNORS, P.C., BUFFALO (ANDREW J. KOWALEWSKI OF COUNSEL), FOR DEFENDANT-RESPONDENT JODI LYNN MCKAY.
MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (SHARON STERN GERSTMAN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
PILLINGER MILLER TARALLO, LLP, BUFFALO (KENNETH A. KRAJEWSKI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS DAVID N. WEINRAUB AND BROWN AND WEINRAUB, PLLC.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (MARTHA E. DONOVAN OF COUNSEL), FOR DEFENDANT-RESPONDENT LINDSAY ROBINSON.
NASH CONNORS, P.C., BUFFALO (ANDREW J. KOWALEWSKI OF COUNSEL), FOR DEFENDANT-RESPONDENT JODI LYNN MCKAY.
PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion of defendants David N. Weinraub and Brown and Weinraub, PLLC and the cross-motion of defendant Lindsay Robinson are denied, the complaint is reinstated against those defendants and against defendant Jodi Lynn McKay, and the matter is remitted to Supreme Court, Niagara County, for further proceedings in accordance with the following memorandum: Plaintiffs commenced this action seeking to recover damages for injuries plaintiff Patrick Harden allegedly sustained in a motor vehicle accident. Defendants David N. Weinraub and Brown and Weinraub, PLLC (collectively, Weinraub defendants) moved pursuant to CPLR 3211 (a) (5) to dismiss the complaint against them as time-barred. Defendant Jodi Lynn McKay cross-moved to dismiss the complaint against her as time-barred or, in the alternative, for failure to state a cause of action. Defendant Lindsay Robinson cross-moved to dismiss the complaint against her as time-barred. Supreme Court determined that the complaint was time-barred, and plaintiffs now appeal from an order that granted the motion and cross-motions. We reverse.
"On a motion to dismiss pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the defendant has the initial burden of establishing that the limitations period has expired" ( Rider v. Rainbow Mobile Home Park, LLP , 192 A.D.3d 1561, 1561-1562, 145 N.Y.S.3d 246 [4th Dept. 2021] ). Once a defendant meets that initial burden, the burden shifts "to plaintiff to aver evidentiary facts ... establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" ( id. at 1562, 145 N.Y.S.3d 246 [internal quotation marks omitted]).
Here, defendants met their respective burdens of establishing that the limitations period had expired. Pursuant to CPLR 214 (5), a three-year statute of limitations applies to an action to recover damages for personal injury. Plaintiffs’ cause of action accrued on December 4, 2018, the date of the accident (see Torres v. Greyhound Bus Lines, Inc. , 48 A.D.3d 1264, 1264-1265, 852 N.Y.S.2d 521 [4th Dept. 2008] ; Peace v. Yumin Zhang , 15 A.D.3d 956, 957, 789 N.Y.S.2d 362 [4th Dept. 2005] ; Marino v. Proch , 258 A.D.2d 628, 628, 685 N.Y.S.2d 761 [2d Dept. 1999] ), and plaintiffs did not commence this action until May 18, 2022. However, in response, plaintiffs established that the statute of limitations was tolled. On March 20, 2020, then-Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.8, which tolled "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to ... the civil practice law and rules" ( 9 NYCRR 8.202.8 ). Then-Governor Cuomo issued a series of nine subsequent executive orders that extended the tolling period, eventually through November 3, 2020 (see Executive Order [A. Cuomo] Nos. 202.14 [9 NYCRR 8.202.14], 202.28 [ 9 NYCRR 8.202.28 ], 202.38 [ 9 NYCRR 8.202.38 ], 202.48 [ 9 NYCRR 8.202.48 ], 202.55 [ 9 NYCRR 8.202.55 ], 202.55.1 [9 NYCRR 8.202.55.1], 202.60 [ 9 NYCRR 8.202.60 ], 202.67 [ 9 NYCRR 8.202.67 ], 202.72 [ 9 NYCRR 8.202.72 ]). "A toll does not extend the statute of limitations indefinitely but merely suspends the running of the applicable statute of limitations for a finite and, in this instance, readily identifiable time period" ( Chavez v. Occidental Chem. Corp. , 35 N.Y.3d 492, 505 n. 8, 133 N.Y.S.3d 224, 158 N.E.3d 93 [2020], rearg denied 36 N.Y.3d 962, 137 N.Y.S.3d 292, 161 N.E.3d 480 [2021] ). "[T]he period of the toll is excluded from the calculation of the time in which the plaintiff can commence an action" ( id. ).
Here, 472 days of the 1,095-day limitation period had elapsed by the time the toll began on March 20, 2020. Upon the expiration of the toll on November 3, 2020, the remaining 623 days of the limitation period began to run again, expiring on July 20, 2022 (see Matter of New York City Tr. Auth. v. American Tr. Ins. Co. , 211 A.D.3d 643, 643, 181 N.Y.S.3d 218 [2d Dept. 2022] ). Thus, the action was timely commenced on May 18, 2022 (see Murphy v. Harris , 210 A.D.3d 410, 411, 177 N.Y.S.3d 559 [1st Dept. 2022] ; Matter of Roach v. Cornell Univ. , 207 A.D.3d 931, 932-933, 172 N.Y.S.3d 215 [3d Dept. 2022] ; Brash v. Richards , 195 A.D.3d 582, 582, 149 N.Y.S.3d 560 [2d Dept. 2021] ).
Defendants contend that the toll is inapplicable here because plaintiffs could have timely commenced the action at any point between December 4, 2018, and March 20, 2020, or between November 3, 2020, and December 4, 2021. We reject that contention. "[A] toll operates to compensate a claimant for the shortening of the statutory period in which it must commence ... an action, irrespective of whether the stay has actually deprived the claimant of any opportunity to do so" ( Lubonty v. U.S. Bank, N.A. , 34 N.Y.3d 250, 256, 116 N.Y.S.3d 642, 139 N.E.3d 1222 [2019], rearg denied 34 N.Y.3d 1149, 119 N.Y.S.3d 431, 142 N.E.3d 114 [2020] ; see Matter of Hickman [Motor Veh. Acc. Indem. Corp.] , 75 N.Y.2d 975, 977, 556 N.Y.S.2d 506, 555 N.E.2d 903 [1990] ). Thus, plaintiffs were entitled to the benefit of tolling for the entire 228-day duration of the COVID-19 Executive Orders.
We therefore reverse the order, deny the Weinraub defendants’ motion and Robinson's cross-motion, and reinstate the complaint. Inasmuch as the court did not address the alternative ground for dismissal raised in McKay's cross-motion, we remit the matter to Supreme Court to consider that ground and determine McKay's cross-motion anew (see Lundy Dev. & Prop. Mgt., LLC v. COR Real Prop. Co., LLC , 181 A.D.3d 1180, 1181, 118 N.Y.S.3d 478 [4th Dept. 2020] ; see also Julius v. County of Erie , 196 A.D.3d 1058, 1059, 147 N.Y.S.3d 488 [4th Dept. 2021] ).