Opinion
51667.
Decided December 17, 2004.
Muraca and Kelly, LLP, Mineola, NY, Attorneys for Plaintiff.
Fallon and Fallon, LLP, Sayville, NY, Attorneys for Defendant.
Defendant's motion seeking dismissal of the plaintiff's complaint pursuant to CPLR 3211(a)(5) is granted for the reasons set forth hereinafter.
Plaintiff, who was born on March 9, 1971, commenced the underlying cause of action against the defendant on September 21, 2004 alleging forcible sexual assault. According to the plaintiff's complaint, the sexual assault began in 1982 and concluded in 1983 when the plaintiff was 11 and 12 years old respectively.
Defense counsel has interposed the instant application praying for dismissal of the plaintiff's complaint upon the ground that the cause of action is time barred by the applicable statute of limitations.
In opposition, the plaintiff argues that based upon the doctrine of Equitable Estoppel, that the defendant should be prevented from asserting an affirmative defense involving the statute of limitations.
Upon moving pursuant to CPLR 3211(a)(5) seeking a judgment to dismiss a claim as being barred by the statute of limitations, the burden is upon the moving party to establish via prima facie proof that the statute of limitations has in fact elapsed. ( Hoosac Val. Farmers Exch. v. AG Assets, 168 AD2d 822.)
It is the defendant's contention that the correct statutory period of limitation for an action sounding in sexual assault is one year and that such limitation period expired on March 9, 1990. This Court agrees.
Due to the infancy of the plaintiff at the time of the sexual assault was alleged to have taken place, the running of the limitation period was properly tolled until March 9, 1989, the date that the plaintiff reached the age of 18 years of age. (CPLR 208; CPLR 215[c].) The plaintiff then had one year from that date during which to interpose her cause of action or otherwise be time barred from so doing.
As the defendant has established that the statute of limitation did indeed elapse on March 9, 1990, the burden now shifts to the plaintiff to produce evidentiary facts sufficient to demonstrate that the limitations period should be tolled or that there exists some exception to the statutory period. ( Waters of Saratoga Springs v. State of New York, 116 AD2d 875, affd 68 NY2d 777.)
Relying principally upon the doctrine of Equitable Estoppel, the plaintiff's central argument is that the defendant should be prevented from asserting the affirmative defense of the statute of limitations.
In order to invoke the doctrinal provisions of Equitable Estoppel, it must be shown that the defendant wrongfully induced the plaintiff to refrain from timely commencing an action by deception, concealment, threats or other misconduct. ( Zoe G. v. Frederick F.G., 208 AD2d 675.) The application of the doctrine is triggered by conduct of the defendant which takes place after the initial tortious conduct. ( Zoe G., supra.) Further, a plaintiff attempting to employ the doctrine of Equitable Estoppel must demonstrate that she instituted the action "within a reasonable time after the facts giving rise to the estoppel have ceased to be operational." ( Overall v. Klotz, 52 F.3d 398; Simcuski v. Saeli, 44 NY2d 442.)
Upon a review of the law, it appears that the portions of the doctrine which apply to the instant matter are those speaking of threats and or other misconduct engaged in by the defendant subsequent to the initial tortious conduct, the purpose of which was to deliberately dissuade the plaintiff from timely bringing suit. This Court now turns to the proof submitted by the plaintiff in support of her contention that it was the defendant's conduct which prevented her from timely commencing her action.
Plaintiff proffers her own affidavit which includes the plaintiff's recollection of the circumstances surrounding the alleged sexual assaults. The affidavit also contains descriptions of certain post-sexual assault actions by the defendant, characterized by the plaintiff as threatening in nature.
With respect to her averments about the sexual assaults, the plaintiff chronicles one incident in particular which also included abuse of not only the plaintiff herself but also of her older sister and a neighborhood friend. Concerning the plaintiff's assertions regarding defendant's threatening post-assault conduct, the plaintiff recounts two specific incidents in May of 2003 and July of 2004, the latter of which was apparently witnessed by the plaintiff's brother. Both of these incidents occurred when the plaintiff was in her boat and where the defendant, while operating his own boat, did so in such an aggressive manner that the plaintiff believed her safety and that of her vessel were compromised.
Upon reviewing the plaintiff's affidavit, this Court finds that the allegations set forth by the plaintiff are insufficient in and of themselves to establish the presence of post-assault threatening behavior on the part of the defendant. Due to a lack of more detailed factual content coupled with an absence as to any explanation of how specifically the post-assault actions of the defendant actually prevented the plaintiff from instituting legal action, the affirmation is insufficient to invoke Equitable Estoppel.
Moreover, even assuming, arguendo, that this court fully credits the plaintiff's affidavit, the doctrine of Equitable Estoppel would still remain unavailable under these circumstances. As adduced by the plaintiff's own averments, she moved out of her neighborhood in 2001 and does not allege another incident as to the defendant's threatening behavior until 2003. Thus, there was approximately a two year period of time during which the defendant's actions giving rise to the estoppel had ceased and yet the record before this court is devoid of any indication that the plaintiff even attempted to prosecute or pursue any potential legal remedies available to her during such time. Consequently, the plaintiff is prevented from now seeking shelter from this equitable doctrine. ( Simcuski, supra.)
Throughout the opposition papers, the plaintiff relies upon the case of Anonymous v. Anonymous ( 154 Misc 2d 46). In Anonymous, that court was confronted with a plaintiff claiming a toll due to her trauma induced insanity and concomitant memory loss. The plaintiff in that case submitted psychiatric evidence as to the existence and extent of her trauma related psychological injuries. In this case currently before the court the plaintiff is not claiming insanity and has not suffered a memory loss. Further, the court in Anonymous ordered a fact-finding hearing due to what that court considered an entwinement between the issue of that plaintiff's insanity and her allegations regarding that defendants actions and the resulting impact upon her. It was the presence of genuine questions as to plaintiff's mental condition that persuaded the court in Anonymous to order a hearing as to that and all related issues. ( Anonymous v. Anonymous, supra, at 56.)In the instant matter, no such issues of material fact are present. Thus, the two cases are dissimilar and plaintiff's reliance upon Anonymous is misplaced.
It should be noted that this Court did consider the potential applicability of "duress tolling" to this particular case. In order for "duress tolling" to stop the running of the statute of limitations there must be evidence of conduct that constitutes a continuation of the underlying tort. There needs to be indicia that the plaintiff was subjected to a "continuous wrong". ( Overall, supra.) In the matter sub judice this court finds no evidence of a continuation of the underlying alleged malfeasance and consequently concludes that "duress tolling" is inapplicable. ( Zoe, supra.)
As to "equitable tolling", here as well the court finds this principle to be as equally unavailing. Equitable tolling is applicable under circumstances where the defendant has employed deception to conceal the presence of a viable suit from the plaintiff. In the instant situation, there is no evidence that the plaintiff was in any way unaware as to existence of an action at law. ( Kotlyarsky v. New York Post, 195 Misc 2d 150.)
While counsel for the plaintiff argues passionately that the interests of justice should compel this court to order a hearing, controlling case law mandates otherwise.
Based upon the foregoing, the defendant's motion to dismiss the plaintiff's complaint pursuant to CPLR 3211(a)(5) is hereby granted.
This constitutes the Decision and Order of this Court.