Summary
holding that the lower court "properly dismissed the complaint on the merits because . . . the [s]tatute of [l]imitations had expired," noting that "[t]he maximum 10-year tolling period set forth in CPLR 208 is measured from the date of accrual of plaintiff's cause of action"
Summary of this case from Ganley v. City of N.Y.Opinion
June 10, 1998
Appeal from Order and Judgment of Supreme Court, Monroe County, Sirkin, J. — Dismiss Pleading.)
Present — Pine, J.P., Lawton, Wisner and Balio, JJ.
Order and judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the complaint on the merits because the action was not properly commenced pursuant to CPLR 304 and the Statute of Limitations had expired ( see, Dawson v. Bastine, 231 A.D.2d 548; Shivers v. International Serv. Sys., 220 A.D.2d 357). The maximum 10-year tolling period set forth in CPLR 208 is measured from the date of accrual of plaintiff's cause of action, not from the date of plaintiff's release from the Rochester Psychiatric Center ( see, Rivera v. Brookdale Hosp. Med. Ctr., 205 A.D.2d 677). Although plaintiff contends that he has an additional cause of action for fraud that he recently discovered ( see, CPLR 213, he has made no evidentiary showing to support that contention ( see, Sober v. Kalina, 208 A.D.2d 1140; Tenenbaum v. Long Beach Mem. Hosp., 206 A.D.2d 973).