Opinion
6:11-CV-222 (NAM/DEP)
09-21-2012
MAJOR WHITE, Plaintiff, v. ABDOOL ROSHAN KHAN, Defendant.
Victor A. Caponera , Jr. Attorney for Plaintiff Hiscock & Barclay, LLP David M. Cost, Esq., of counsel Attorney for Defendant
APPEARANCES: Victor A. Caponera , Jr.
Attorney for Plaintiff
Hiscock & Barclay, LLP
David M. Cost, Esq., of counsel
Attorney for Defendant
Hon. Norman A. Mordue, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Defendant moves (Dkt. No. 17) for summary judgment in this action for personal injuries allegedly sustained when plaintiff fell down the stairs while moving into an apartment in a multiple dwelling unit owned by defendant. Defendant contends that the action, commenced on February 25, 2011, is barred by the applicable three-year limitations period. See N.Y.C.P.L.R. § 214(5). The unverified complaint (Dkt. No. 1), filed by Elmer R. Keach, III, Esq., plaintiff's former counsel, alleges that the accident occurred on February 27, 2008. On January 6, 2012, plaintiff, by new counsel, filed a verified "Answer to Defendant's Request for Admission" in which plaintiff admitted that the accident underlying his claim occurred on February 17, 2008, more than three years prior to commencement of this action. Plaintiff does not oppose the present motion to dismiss.
It is therefore
ORDERED that defendant's motion (Dkt. No. 17) for summary judgment dismissing the action is granted; and it is further
ORDERED that the case is dismissed with prejudice on the ground that plaintiff failed to commence the action within the three-year statute of limitations set forth in NYCRR § 214(5).
IT IS SO ORDERED.
Date: September 21, 2012
Syracuse, New York
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Honorable Norman A. Mordue
U.S. District Judge: