Opinion
10-19-2016
Rosella PEPENELLA, appellant, v. BRUMAR DAY SPA CORP., etc., respondent.
Law Office of Bryan J. Swerling, P.C., New York, NY (Brian Issacs of counsel), for appellant. Tromello, McDonnell & Kehoe, Melville, NY (James S. Kehoe and Christopher Power of counsel), for respondent.
Law Office of Bryan J. Swerling, P.C., New York, NY (Brian Issacs of counsel), for appellant.
Tromello, McDonnell & Kehoe, Melville, NY (James S. Kehoe and Christopher Power of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Sampson, J.), dated April 20, 2015, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she was receiving massage therapy. The defendant moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. The Supreme Court, among other things, granted that branch of the defendant's motion. “On a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” (Kitty Jie Yuan v. 2368 W. 12th St., LLC, 119 A.D.3d 674, 674, 988 N.Y.S.2d 898 ; see Beroza v. Sallah Law Firm, P.C., 126 A.D.3d 742, 742, 5 N.Y.S.3d 297 ). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable (see Beroza v. Sallah Law Firm, P.C., 126 A.D.3d at 742–743, 5 N.Y.S.3d 297 ; Kitty Jie Yuan v. 2368 W. 12th St., LLC, 119 A.D.3d at 674, 988 N.Y.S.2d 898 ).
Here, the defendant established, prima facie, that this action was not commenced against it until after the applicable statute of limitations had expired (see LeBlanc v. Skinner, 103 A.D.3d 202, 208, 955 N.Y.S.2d 391 ; Rinzler v. Jafco Assoc., 21 A.D.3d 360, 362, 800 N.Y.S.2d 719 ). In opposition, the plaintiff failed to raise a question of fact that would warrant denial of the motion. The plaintiff's contention that the law of the case doctrine precluded the Supreme Court from granting the defendant's motion is without merit (see Donahue v. Nassau County Healthcare Corp., 15 A.D.3d 332, 333, 789 N.Y.S.2d 519 ; see also Lehman v. North Greenwich Landscaping, LLC, 65 A.D.3d 1293, 1294, 887 N.Y.S.2d 133 ). In addition, the plaintiff's contention that the defendant should be equitably estopped from relying on the statute of limitations was not raised in opposition to the defendant's motion and is not properly before this Court (see Reid v. Incorporated Vil. of Floral Park, 107 A.D.3d 777, 778, 967 N.Y.S.2d 135 ; Mitchell v. Nassau Community Coll., 265 A.D.2d 456, 456, 696 N.Y.S.2d 866 ). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
In light of our determination, we need not reach the defendant's remaining contentions, which are raised as alternative grounds for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ).